Author: Cubalex

Instigating a Crime in the Draft Cuban Criminal Code / Cubalex

Cubalex, Laritza Diversent, 11 March 2022 — Instigating a crime is a crime against public order which appears in Article 202 of the Island’s current Criminal Code. However, this would undergo notable changes, according to the draft of the new Criminal Code, which will go into effect in April 2022, after approval by the delegates of the National Assembly of the People’s Power (ANPP). In the first section, the minimum jail sentence increases from three to six months, while the maximum remains the same. The penal framework is reduced, but the severity increased. Regarding the fine, it remains unchanged, however in the draft, the tribunal may decide to impose both sanctions: deprivation of liberty and a fine, simultaneously. The new Article 268 on instigation of a crime is read as follows in the Draft Criminal Code:

1. Whosoever, falling outside the case aforementioned in subparagraph c) of Article 145, publicly incites to commit a particular crime, incurs a penalty of deprivation of liberty for six months to one year or a fine between one hundred and three hundred quotas or both.

2. If the instigation is effective, the penalty imposed will correspond with the crime committed, if it is a higher penalty than the one referenced in the previous section.

3. If the instigation is to violate a law, or a legal disposition, or a measure adopted by the authorities, or citizen duties related to defense of the Homeland, production, services or education, the penalty imposed will be as described in section 1, with its lower and upper limits reduced by one-third. 

4. If the facts mentioned in previous sections occur via social media or other social communications channels, the lower and upper limits of the penalties applied for each case will increase by one-half. One section that did not undergo any changes is that, if the instigation is effective, the sanction that corresponds to the crime committed will be imposed, if it is higher than that mentioned in the previous section.   

The third section was combined with the fourth, increasing the possible motives for inciting civil disobedience, such as the case of non-compliance with “the duties of citizens related to defending the Homeland, production, services, or education,” which in the current Criminal Code are continue reading

included in section 4 of Article 202.

In this case, the minimum sanction in the penal framework also increases from one to four months and the maximum from three to eight. The fine also increases between 67 and 150 quotas. In the current code the maximum fine cannot exceed 100 quotas. Similarly, the tribunal may apply both sanctions.

In the draft, the fourth section contains completely new content: committing the crime using social media or other social communications channels. In this case the penalty is described in the third section, which, in turn, references the penalty in section one (six months to one year), with the lower and upper limits increased by one-half. The new criminal framework will be between nine months (lower limit) and a year and a half (upper limit) deprivation of liberty. The fine will also increase between 150 and 450 quotas and the tribunal may impose both sanctions.

We can conclude that sections 3 and 4 criminalize civil disobedience and freedom of expression. It is one way of preventing peaceful social protests because generally civil disobedience raises the awareness of the citizenry regarding the consequences of an unjust law, inviting them to mobilize to put an end to it.

The criminalization of civil disobedience also means the violation of the right to freedom of conscience (the law clashes with its most fundamental ethical principles and one feels the moral need to fight it, as remaining quiet before an injustice is incompatible with its conscience, freedom of expression, transmitting a message of denouncement against the unjust law and political participation).

Within instigation of a crime, campaigns against legal norms on social media, such as those conducted against Decree 349 and Decree Laws 370, 389, and 35 will be criminalized.

This entry, first appeared on Cubalex as Instigación a delinquir en el Anteproyecto del Código Penal cubano.

Translated by: Silvia Suárez  

Cuba: The Forced Exile of Anamely Ramos / Cubalex

The Right to Return

Cubalex, 16 February 2022

Article 13 of the Universal Declaration of Human Rights is clear:

“1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.”

Also the International Covenant on Civil and Political Rights: Article 12.4 [states], “No one shall be arbitrarily deprived of the right to enter his own country.”

Article 52 of the Constitution of the Republic of Cuba recognizes as a right any person’s “freedom to enter, remain, travel, and exit the national territory, move or change residence, without limitations beyond those established in the law.”

Anamely Ramos González is not stateless, although it is what the Cuban state would like to convert her into.

She is a Cuban citizen. She has not made any legal arrangements that would result in the loss of her citizenship nor has she been informed of any resolutions declaring that.

She is a resident of the island. She has not been declared an emigrant, as she has not exceeded the uninterrupted 24-month period abroad as regulated in Decree-Law 302 Modifying Law No. 1312, the “Migration Law,” in article 9.2, nor has she lived abroad without complying with the existing migration regulations. continue reading

She possesses a valid Cuban passport, issued in her name.

Thus, Anamely is acting within the bounds of the law and it is the Cuban government that violates not only international law but the principle of equality and nondiscrimination, if not its own domestic legislation.

The aforementioned Decree-Law regulates a series of transactions required not only for the loss of citizenship but also a set of exceptions to deny entry into the country: Article 24. [These include engaging in:] prior terrorist activities, trafficking in persons, drug trafficking, money laundering, arms dealing or others which are prosecutable internationally; being linked with acts against humanity, human dignity, public health or prosecutable by virtue of international treaties to which Cuba is a party; organizing, stimulating, carrying out or participating in hostile acts against the political, economic, and social foundations of the Cuban state; when advisable for reasons of National Defense and Security; being denied entry into the country for having been declared undesirable or expelled and failure to comply with the regulations of the Migration Law, its regulations [sic], and the complementary provisions for entry into the country.

Anamely Ramos is not within any of those legal assumptions.

The Migration Law and its Regulations do not establish procedures for appealing the discretionary decisions of officials and for that reason they are not susceptible to being challenged in cases of abusive, discriminatory, arbitrary, irrational, and unjust application.

Cubalex reminds the Cuban state of its obligation to be transparent and protect and guarantee the right to access information; therefore, if a bilateral agreement exists between the two states or an agreement between American Airlines and the Cuban government, it must be published by virtue of the principle of transparency. This information is a matter of public interest.

Furthermore, they highlight that the burden of proof is on immigration authorities and that all acts that restrict fundamental rights must be argued in a reasoned and legally grounded manner, where the proof of damage is perfectly proven, which is nothing more than showing the real danger to Cuban society of Anamely Ramos González’s return to the country and showing that this damage is greater than the damage caused to her by the restriction of her fundamental rights, which because of the interdependence of human rights, inevitably implies the violation of others.

This is not the first time the state denies its citizens entry. However, this is different. In the cases previously documented by Cubalex, people had allowed the uninterrupted 24-month period to elapse without returning to the national territory (emigrants) and of residents in Cuba who were prevented from exiting when they tried to return to their country of residence. Currently, although Anamely’s migratory legal status is public and notorious, the state is responsible for leaving her defenseless and at risk in a foreign territory, given the irregular migratory status to which she is now exposed.

In any case, the motive for selective application of the law and justice is political discrimination against human rights defenders, independent journalists and artists, and in the majority of cases is led by State Security agents in collaboration with departments of Immigration and Foreigners (both belonging to the Ministry of the Interior).

Of interest: The right to enter one’s own country

This entry, Cuba: The Forced Exile of Anamely Ramos, first appeared [in Spanish] on Cubalex.

Translated by: Silvia Suárez

Chancellor Bruno Rodríguez Lies About the Trials in Cuba / Cubalex

Text: The United States is well aware that the current judicial processes in Cuba are carried out in full compliance with the law and within internationally accepted standards. It lies to tarnish the exemplary work of #Cuba in protecting its children and to justify criminal coercive measures.”

Cubalex, Alain Espinosa, 26 January 2022 — Cubalex responds to statements made by Cuban Chancellor Bruno Rodríguez, who stated that due process is being respected during trials in Cuba. The chancellor, once again, lies; we explain why his pronouncement is false.

The criminal proceedings against opponents in Cuba, in a general sense, are plagued with illegalities. In the specific case of J11 protestors, the first thing to note is the criminalization of a natural human right such as peaceful protest, which is also intrinsically linked to other natural rights such as freedom of expression or equality before the law.

It is important to note that Cuban criminal procedural legislation lacks, intentionally, a correct legislative technique and thus, procedural tools to guarantee the rights of the indicted/accused. In addition, political will on the part of the Cuban government to guarantee its citizens the rule of law is completely absent, an extreme which is reliably demonstrated by the lack of separation of powers.

This includes, among other elements, the complete subordination of judicial powers to the executive branch, in cooperation with the prosecutor. The current president in a public declaration described this as a “unity of power.” Such subordination is by nature antagonistic to the inherent obligations of judges as they execute their judicial functions, and thus creates a real conflict of interest which objectively goes against the rule of law.

Throughout the proceedings referred to above, innumerable transgressions against due process have been observed:

A large majority of the protesters arrested were held for days without judicial processes. Authorities denied family members information about the whereabouts of those arrested; this, according to several international human rights treaties which are incorporated into the national judicial order, constitutes forced disappearance, which is expressly prohibited by international and domestic laws, and specifically, by the national constitution. continue reading

The impossibility of access to legal defense, an element which is violated not only by impeding access to a defense from the beginning of the process, but also by impeding access to the hearings, and unsubstantiated decisions which are not communicated in compliance with the established law, depriving the indicted of the possibility of due process to which s/he is entitled as a guarantee of judicial security. Specifically, providing evidence and requesting the exclusion of improperly obtained evidence, and the right to be informed of the charges against him/her are also violated.

The right of the accused to communicate with family and friends is not respected. In many cases it is overtly denied as a means of coercion, to force the prisoner to make self-incriminating statements, or when investigative authorities insist on acting as intermediaries between the indicted and his/her loved ones despite the established legal procedures which explicitly establish that such communication should be direct between the accused and his/her family members.

Authorities’ treatment of the accused represent an assault on their dignity and physical and psychological integrity, often as a way to coerce them and force them to make self-incriminating statements at the time of their arrest.

The use of the following methods has been proven: long periods of confinement in patrol cars exposed to the sun without access to water, and in the case of women complete nudity, forced cavity searches, and denying them personal hygiene for several days while they are menstruating. In other cases, mostly of those held in penitentiaries, the use of physical violence which includes methods commonly referred to as the bicycle, the banana cluster or the use of shakiras [shackles].  All these methods cause severe physical harm to the accused, which is later concealed by authorities by violating other rights, among them the right to visitors or communication. In cases of extremely visible signs, they are isolated in punishment cells until these disappear.

The judicial phase is also plagued by violations, many established in the current, very poor legislation which during quick, summary proceedings allows oral notification of sentences, which prevents the verification of the probative material reviewed by the judges  to convict and sanction. This element transcends and directly and negatively affects the accused when it comes time to exhaust their appeals, preventing them from citing substantive grounds for their case to be reviewed by higher courts.

In addition to the aforementioned, during the trials, there has been a complete mismatch between the behavior of the judges and the principles which guide the exercise of judicial function, demonstrating extreme partiality as follows:

Violation of the principle of public debate, by discriminately exercising the power to prevent access to the public to attend the oral trial; limiting entry to one family member per accused, while allowing unrestricted access to members of repressive organizations. In this sense, the violation is more severe because the judges do not even comply with the legal requirements. They make decisions like these, which not only violate the rights of the accused, but also directly affect the principle of transparency which dictates the behavior of public servants and interferes with the real possibility that citizens exercise control over their actions.

Violation of the principle of independent review of the evidence, in the same way that they discriminately and illegally restrict the ability of the parties to provide burden of proof, in the majority of cases allowing an extremely limited number of defense exhibits, especially witnesses. While in the case of the prosecutor, there is no limit on the number of exhibits and witnesses.

All these violations place the indicted/accused in a complete state of defenselessness which affects their family members in two ways:

Indirectly, through all the suffering generated by the unjust and illegal proceedings to which their family members are subjected, in many cases minors who have not reached the legal age to respond criminally. In addition, ever-present is the impossibility of a defense as a result of the partiality with which the process is conducted.

Direct, a product of the harassment to which they are subjected by repressive organizations, especially state security, to prevent them from exercising their natural rights such as freedom of expression, the only way they can bring visibility to the situation faced by their family members  to seek justice for them.

Chancellor Bruno Rodríguez Lies About the Trials in Cuba was first published in Cubalex.

Translated by: Silvia Suárez

Under Military Presence, 11J Protesters are Processed in Artemisa / Cubalex

Sentencing requests for some of the Cubans who protested in 11 July. (Cubalex)

Cubalex, 22 November 2021 — On November 22nd and 23rd, the judicial proceedings against 13  of the July 11th (11J) protesters are being held at the Provincial Tribunal of Artemisa. According to our sources all of the areas surrounding the courtroom are militarized. The police, red berets, black berets and State Security have organized a large-scale surveillance operation. For its part, the tribunal, in violation of established national legislation and international standards, has restricted public access and has only allowed the presence of one family member per accused.

Family members are devastated and discriminated against. Alarmed and worried due to the lack of media attention that these trials have had. To Cuban civil society, to the independent press, those who have business to conduct today at the tribunal, those who in one form or another can share information, we ask for your support to raise the visibility of the situation of these protesters and sensitize the international community. Let’s accompany the family members of the 11J peaceful protesters in these very difficult moments. Let’s not leave them alone, they need us today, now. Share the situation on your social media, if you have close neighbors in areas surrounding the tribunal, ask them to share information about what they are able to observe, including photos.

Justicia 11 and Cubalex condemn this and demand complete and immediate dismissal of the charges currently being processed by the prosecutor’s office, as well as the cases that have already been presented by the prosecutor to the tribunal, without trials. We request human rights organizations and those that protect journalists and activists to ensure the security of those within and outside of Cuba; who for their clear position of denouncement can become the targets of violence, harassment and repression by Cuban state and government bodies.

These are the names of those detained who are being processed: Javier González Fernández, Alexander Díaz Rodríguez, Yurien Rodríguez Ramos, Eduard Bryan Luperon Vega, Eddy Gutiérrez Alonso, Víctor Alejandro Panceira Rodríguez, Yeremin Salcines Janes, José Alberto Pío Torres, Leandro David Morales Ricondo, Luis Giraldo Martínez Sierra, Iván Hernández Troya, Yoslén Domínguez Victores, Yoselín Hernández Rodríguez.

Recommendations:

We continue to urge family members to constantly denounce these cases, based on the proven fact that raising the visibility has provided significant protection. Our political prisoners are not alone. We demand justice.

Translated by: Silvia Suárez

How Repression Unfolded in Cuba on November 14th / Cubalex

 

Image representing José Martí with a white rose.

Cubalex, 15 November 2021 — Cubalex summarized the 48 acts of harassment against civil society we’ve monitored since yesterday, November 14th.

At the end of each day, we will be publishing similar reports. We request your help in sharing. Let’s show the repressive essence of the Cuban regime.

Havana

La Lisa

1. Yunior García Aguilera denounced that his home was surrounded by agents dressed as civilians who violently expelled a crew of journalists that arrived to try to interview him. The mob performed an act of repudiation in front of his house.

Habana del Este (East Havana)

2. Under siege in her house Yoani Licea Gómez, one of the signers of the application to the march on 15N [that was submitted to the authorities and rejected].

Marianao

3. The internet was cut off for Rafael Santos Regalado and his family members and his house is surrounded by patrol cars.

Playa

4. Yeniley Perdomo Sao received a police summons and state agents established a surveillance operation at the home of Abu Duyanah Tamayo. continue reading

5.María Esther Lemus  summoned to an interrogation and subjected to threats and degrading treatment.

Cotorro

6. Miryorly García denounced a surveillance operation at her home and later an attempted repudiation meeting.

Regla

7. Diosdado Verdecia denounced a surveillance operation.

San Miguel del Padrón

8. Ever Zamora Hernández received a San Miguel del Padrón police summons.

Havana

8. Under house arrest Maykel González.

Central Havana

9. Edel Carrero is under house arrest.

Boyeros

10. Detained José Díaz Silva and Lourdes Esquivel.

Revolution Plaza

11. Two young people were detained in Quijote Park.

12. State agents prevented the movement and established surveillance operations at the homes of Oscar Casanella, Boris González Arenas, Abraham Jiménez Enoa and Luz Escobar, who was threatened by a State Security agent when she filmed him.

Arroyo Naranjo

13. Yolanda Santana Ayala is assumed to be “disappeared”.

Cerro

14. Carolina Sansón denounced a surveillance operation.

La Lisa

15. Under surveillance in his home Pablo Enrique Delgado Hernández.

Other relevant information

16. All week Camila Acosta, Ileana Hernández and Carolina Barrero denounced surveillance operations at their residences.

17. Militarization: The presence of Rapid Response Brigades and military trucks are reported along the malecón.

18. The office of Religious Affairs of the Central Committee tells priests Rolando Montes de Oca, Castor Álvarez and Alberto Reyes that if they participate in tomorrow’s protests they will be detained.

Granma

Bayamo

19. Doctor Alexander Jesús Figueredo denounced surveillance operations in his usual places of residence.

20. Lieutenant Colonel Oriel verbally summoned Yunior Berges to an interrogation. He is under surveillance in his home.

Manzanillo

21. Yander Serra was summoned by police. As he was walking, they detained him and took him to the police station and fined him 3,000 pesos because supposedly two days before they saw him using his face mask incorrectly.

22. Yoendri Fornaris, one of the people who protested on July 11th, denounced a surveillance operation at her residence.

Jiguaní

23. Noeima Rodríguez was visited by the chief of State Security in the province to intimidate her and threaten her, incuding her children.

Guantanamo

Baracoa

24. Yoel Acosta Gámez was detained in his home and Emilio Almaguer de la Cruz denounced surveillance operations

Guantanamo

25. Niober García received a police summons and denounced the surveillance operation established at his home, in addition to Rolando Rodríguez Lobaina

Camagüey

26. Harrassment of the headquarters of Partido Libertario Cubano [Cuban Libertarian Party] José Martí

27. Surveillance at the home of Lady in White María Cristina Labrada Varona.

Santiago de Cuba

Santiago de Cuba

28. Eduardo Clavel Rizo received a police summons and as he returned from the interrogation they conducted an act of repudiation.

29. Eloy Calugna, Fernando Castro and Pastor René Machado were detained

30. We received reports of military presence in the streets of this municipality

31. Jorge Amado Robert denounced surveillance operations. Captain Ronaldo from State Security told him he could not leave his home.

Palma Soriano

32. Marioldis Delgado Romero received a police summons. Denia Fernández Rey and her husband were threatened by police to they would not leave their houses.

Sancti Spíritus

33. The military presence in Trinidad city was denounced.

Villa Clara

Santa Clara

34. Saily González, Raux Denis Rodríguez, Omar Mena and Leidy Laura Hernández denounced surveillance operations at their homes.

35. Persons dressed in civilian clothing harrassed Víctor Javier Ariaz Ruiz for putting a sign up at his house. An act of repudiation was conducted.

Camajuaní

36. Librado Linares was intercepted in the street by Security agent who told him he could not leave his house until the 16th.

Pinar del Río

Pinar del Río

37. Under house arrest Julio César Góngora Millo. Consolación del Sur.

38. An act of repudiation for Yahima Díaz. Minas de Matahambre.

39. Surveillance at the home of Pedro Víctor Serrano.

Mayabeque

40. Quivicán. Reports of harassment of detainees.

Artemisa

41. Alquízar. Diasniurka Salcedo is under house arrest.

Matanzas

42. Cárdenas. Surveillance at the home of Carlos Manuel Álvarez who is in New York.

Isla de la Juventud

43. Act of repudiation for David Gómez Sánchez.

Holguín

44. Víctor González, one of the signers of the application for the march on 15N, was detained.

45. Miguel Alejandro Montero Ochoa, moderator of Archipiélago, was reported missing 24 hours ago. He later published a video informing that he was detained under Criminal Instruction. He was later released.

Ciego de Avila

46. A military event was held in Martí Park.

Las Tunas

Las Tunas

47. A grand police deployment with sirens throughout the streets of the city.

Jobado

48. Pedro Lago Segura detained at work.

Translated by: Silvia Suárez

Cuba: Repressors Identified / Cubalex

Help us to identify him. (Cubalex)

Cubalex, 6 November 2021 — Cubalex exposes repressors as part of our commitment to make the perpetrators visible. We expose them in solidarity with those who are imprisoned today for exercising a right, and also with their families.

Help us to share, help us to denounce.

Denounce the aggressor! With your voice you can prevent other people from being tortured within the prisons.

“This is Lt. Col. Francisco Estrada Portales, who was in charge of all of my interrogations in the headquarters of OEIDCSE (Special Criminal Investigations Unit for Crimes against the Security of the State) in Villa Marista,” Cuban artist Hamlet Lavastida reported on Twitter.

Lt. Col. Kenia Maria Morales Larrea

Harasses, threatens, and prosecutes independent artists in Cuba.

Johana Tablada

The MINREX (Foreign Ministry) official stated without hesitation “It’s a lie that people have been tortured. It’s a lie that people have been disappeared.”

Official Jorge Luis Garcia, known in San Jose de las Lajas as “bone breaker”, has accused and beaten peaceful July 11th demonstrators.

Help Us to Identify Him

This man has beaten women and men from the opposition. This man put out a cigarette on the face of a Woman in White. This man violently suppressed people who came out to show support for Manuel Otero in Obispo Street. He is known as “Agent Camilo”.

From State Security: Captain Javier

Harasses, threatens, and arrests independent artists in Cuba.

Repressor: Lt. Ernesto Dávila Gallardo

He is the agent-in-charge in the case against journalist Camila Acosta, accused of “public disorder”. Davila, age 26, is a law graduate of the University of Havana.

Journalist Abraham Jimenez also identified him as one of his repressors.

The article “Repressors Identified” was first published in Cubalex.

Laritza Diversent Petitions Inter-American Commission on Human Rights on Behalf of Cubans Detained on July 11 / Cubalex

Laritza Diversent

Dear Commission Members:

My name is Laritza Diversent. I am the director of Cubalex.

Working in collaboration with the group Justicia 11J [11 July], we have recorded the detentions of 1,130 people since July 11, 572 of whom remain incarcerated. Several people who have been released report incidents of torture and mistreatment including beatings, verbal assaults, threats of sexual violence and the use of dogs to intimidate prisoners. They were forced to undress and shout slogans in support of the Cuban revolution such as “Viva Fidel” and “Viva Diaz-Canel.”

According to our records, at least thirty-three have contracted Covid-19 since being imprisoned due to deplorable sanitary conditions and overcrowding in jail cells. We are concerned for those detainees with chronic illnesses, such as HIV, who have reported being denied access to medication. We draw your attention to the situation of five people with disabilities, who require regular psychiatric treatment.

Several of the protesters were temporarily subjected to enforced disappearance. Cubalex is aware of forty people about whom the authorities have declined to provide information as to where they were being detained. We have learned of twelve cases in which courts never issued rulings on this serious violation, a practice which is systemic in Cuba and that must be monitored to prevent it from becoming more common and acute.

We are concerned about the invisibility of certain vulnerable social groups who lack information of the status of those being detained and the their family members who are afraid to come forward. Although some of these groups are not the most representative, the repression against them has been disproportionate so as to have a deterrent continue reading

effect on their communities. We note that belonging to civil society groups perceived as critical of the government has been a decisive factor in filing criminal charges that carry severe sentences.

We are concerned about the effects of detention on youths and adolescents. At least 326 are between the ages of 14 and 30. There are 159 who remain behind bars, including two minors under the age of 16 who are in correctional centers. There are eight between the ages of 16 and 18 who are still incarcerated. In these cases, the State has failed to comply with its obligation to apply the standards on justice as they apply to minors.

We have recorded detentions of thirteen people between the ages of 60 and 75, six of whom remain incarcerated, among them the political activists Carlos Manuel Pupo Rodriguez and Felix Navarro, ages sixty-seven and sixty-eight respectively.

We have recorded detentions of 185 women, sixty-one of whom remain incarcerated. We draw your attention to the plight of single mothers whose family situations have not been taken into account, especially those situations in which minors or other relatives depend on these women for special care.

According to data we have obtained, of the cases involving people of African descendant, 24% of detainees were released from prison compared to 40% of white detainees. There are five people who have real or perceived [non-traditional] sexual orientations and/or diverse gender identities.

Equally concerning is the treatment on journalists covering the protests, who were attacked in an attempt to restrict the flow of information. Assaults were reported on eighteen journalists — five women and thirteen men — from eight independent media outlets in several provinces. Most of those who have been released are under ongoing, illegal house arrest, a situation made worse by selective and deliberate denial of access to internet services.

Lastly, we draw your attention to the statutory framework adopted by the government to limit freedom of expression on digital platforms. Legal Decree No. 35, which took effect in response following the July 11 protests, imposes massive restrictions on internet access and forces operators and providers of public telecommunication services to monitor content on their sites. Under these regulations, live broadcast of demonstrations and online calls for public protests can be treated as harmful dissemination, cyber-terrorism, cyber-warfare and social subversion. Thank you.

The article “Laritza Diversent Petitions Inter-American Commission on Human Rights on Behalf of Cubans Detained on July 11” was first published on Cubalex.

Cuba’s Decree-Law 35/21 is Incompatible with International Standards / Cubalex

(There are no subtitles for this video. Our apologies.)

Presented by Laritza Diversent, Director of Cubalex, for the Human Rights Subcommittee of the European Parliament on September 6, 2021:

Decree Law 35/21 is incompatible with international standards as it indirectly restricts freedom of opinion and expression in the digital context and promotes discrimination based on political opinion or that of another nature and is an assault on the right to equality. Although the State has the right to regular public telecommunication services, in international rights, national sovereignty is not a legitimate motive to restrict the fundamental rights of people subject to its jurisdiction.

These restrictions contradict Articles 8, 40, 41, 47, 54 and 228 in the Constitution of the Republic of Cuba and are contrary to the international treaties ratified by the State, which form part of the national legal order and specifically protect freedom of expression. Among these are the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of People with Disabilities.

By virtue of signing the Universal Declaration of Human Rights and the International Pact on Civil and Political Rights, the Cuban State is compelled to protect freedom of expression. Said commitment is confirmed in Article 47 of the Cuban Constitution which recognizes the rights of people to freely develop their personality, and in Article 54, which obliges the State to guarantee freedom of expression, necessary for the enjoyment of human rights, the illegitimate restriction of which assumes a violation of the principles of indivisibility, interdependence and progressiveness of human rights recognized in Article 41.

Read the complete statement [in Spanish] in the following pdf file:

Analisis-DL-35-21-EDITADO

This entry first appeared on Cubalex as “El D-L/21 es una normative incompatible con los estándares internacionales”

Translated by: Silvia Suárez

Role of the Judges in the Proceedings Against the July 11 Demonstrators / Cubalex

14ymedio biggerCubalex, 24 September 2021 — In our work of informing and advising Cuban citizens, we share this interview with our lawyer Julio Ferrer about the role of judges in the proceedings against the July 11 demonstrators.

What is the function of a judge in the proceedings that are under investigation, with respect to the guarantees of due process, for example, or the presumption of innocence and the burden of proof?

In the prosecutorial system in Cuba, the judge has no function at all with respect to criminal proceedings during the investigative or charging phase. What I say is evident in that the criminal procedure law of Article 105 (obsolete yet still in effect), establishes that the prosecutor exercises control over the preparatory phase that is carried out by the instructor. In other words, the prosecutor has a monopoly during the investigative phase.

The last paragraph of Article 109 of the law itself entrusts such functions during the investigative phase, exclusively to the prosecutor, by establishing, I quote: “during the processing of the preparatory phase, the prosecutor will also supervise compliance with the law in the execution of the actions, proceedings, and procedures as well as in the legal qualification of the facts, will follow the course of the instruction and when it is necessary it will have the practice of actions and proceedings essential for the verification of the crime, the determination of the author and other essential circumstances or the it will carry out by itself and will ensure respect for the procedural guarantees of the accused, for the protection of the rights of the victim or injured party, for the crime and for the interests of the state and society.” continue reading

From my point of view, such a rule itself creates a conflict of interest, since the prosecutor must not, in strict observance of the guarantees of due process, assume two functions that are totally opposed: representing the interests of the state by taking criminal action against a citizen who allegedly committed a criminal act, while at the same time being the watchman who makes sure that the citizen’s guarantees to due process and the presumption of innocence are observed.

Do judges have legal tools in order to supervise the actions of prosecutors and police officers in the event of abuses or excesses in the exercise of their functions or authority?

As I explained in the answer to the preceding question on the prosecution system in Cuba, the judge has no role whatsoever with respect to criminal proceedings when they are in the investigative or instruction phase, since the prosecutor monitors the investigative phase, judges do not have any legal tool to supervise the actions of prosecutors or police agents in case of abuse or excesses in the exercise of their functions and powers.

It is necessary to clarify that in the prosecution system in Cuba the judges hear the case from the moment they are presented to them by the police or the prosecution in correspondence with the crime that is charged to the accused. Phase of the process in which the judges, that is, the court must control the legality of the actions carried out during the investigative process and if they do not comply with the established legal norms, the case can be returned to the prosecutor so that they can be corrected. granted to the judges by Article 263 of the criminal procedure law. Faculty that as a general rule, judges do not use.

Are judges obliged to respect the Constitution and the international human rights instruments to which Cuba is a party?

Yes, but the obsolete and still in force criminal procedure law does not impose on the judges the duty to carry out a constitutional or conventional control of the cases they process and resolve.

Julio Ferrer

In deciding criminal appeals, can the judges impose a harsher sentence [than the one imposed by the lower court]? 

In criminal law, an ancient principle that has come from Roman law prevails, and that is that the appeal must never be detrimental to whomever intervenes, that is, to the appellant, that is to say that the judges when resolving an appeal, will never do so in a way that aggravates the situation or the sanction imposed on that appellant or recurring sanctioned person. It is necessary to explain in this matter that there is a case in which the appellant’s situation may be aggravated and that is when, in addition to the sanctioned, the prosecutor appeals requesting the aggravation of the sanction imposed on the accused and the prosecutor’s appeal is successful.

We have recently seen prosecutorial petitions in which the victim is a witness and the only evidence to destroy the presumption of innocence of the 11 July protesters, is it correct that the courts (judges) receive cases like this?

It is not illegal or incorrect for the court or the judges that comprise it to receive and admit to processing a criminal proceeding in which the only evidence to destroy the presumption of innocence is the testimony of the victim without further witnesses or other means of proof. Well, it’s not about quantity but quality. In other words, it is possible that this single testimony has such forcefulness and evidentiary quality, capable of destroying the presumption of innocence.

Are the courts in Cuba independent and autonomous?

The courts in Cuba are not autonomous or independent at all, as the president of Uruguay explained at the CELAC conference, despite the fact that the constitution in Articles 148 and 150 provide for it. In reality, the opposite occurs, since the law of the courts in Article 1 establishes that the courts are subordinate to the National Assembly and the Council of State and receive instructions from these bodies through their governing council.

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This is How the Cuban Government Repressed its People on October 10th / Cubalex

Cublex, 11 October 2021 — October 10th, which commemorated the beginning of the battles for Cuban independence in 1868, was converted by the Ministry of the Interior into one of the most repressive days in recent years.

Unlike October 10th of last year, when we documented the arrest of 21 people in Havana, yesterday we documented 29 incidents that resulted in a deployment of MININT agents in several provinces, including Havana, Matanzas, Pinar del Río, Camagüey, and Villa Clara.

Below, we present details of incidents we’ve documented through our monitoring.

Havana (23 incidents, detailed by area below)

Playa (2 incidents)

The police captain showed up at Ariel Maceo’s house to summon him to an interrogation. He was interrogated and threatened. Surveillance of Yunia Figueredo’s home.

Revolution Square (4 incidents)

In their homes, Luz Escobar, Oscar Casanella, Héctor Luis Valdés and Eralidis Frómeta are under surveillance by police operatives and State Security.

Old Havana (1 incident)

Ányelo Troya is besieged and under surveillance in his home.

Boyeros, San Miguel de Padrón and East Havana (11 incidents)

The homes of José Díaz Silva, Juan Lamas Martínez, Anyell Valdés Cruz and Lourdes Esquivel Nieto and the headquarters of MONR on Alamar and San Miguel de Padrón are besieged and under surveillance, a joint operation continue reading

of the police and State Security.

Members of MNOR Tomás, Ramos Rodríguez, Frederit Otero Angueira, Rolando Díaz Silva and Ohauris Rondón Riveros have been arrested.

Osmani Pardo is under surveillance at home.

Moisés Leonardo Rodríguez and his daughter, Leticia Rodríguez Iglesias, both member of Corriente Martiana, are under arrest.

Cotorro (2 incidents)

Manuel de la Cruz is under surveillance at home.

Richard Marchante García was summoned by police to an interrogation scheduled for the following day.

Guanabacoa (1 incident)

The police summoned Yonatan Valdez Vego to an interrogation.

Other locations (1 incident)

Manuel Cuesta Morúa’s home is under surveillance.

All week (3 incidents). Havana: The homes of Iliana Hernández, Carolina Barrero and Camila Acosta are besieged and under surveillance at home.

Matanzas (1 incident)

Cárdenas: Leticia Ramos Herrería is besieged and under surveillance at home.

Pinar del Río (1 incident)

Pinar del Río: Alexeys Blanco was summoned by police to an interrogation after attempting to deliver a letter to authorities in Briones Montoto requesting permission to peacefully march on November 20th.

Camagüey (2 incidents)

Camagüey. State Security summoned Ailex Marcano Fabelo, the mother of a young man detained on July 11th, who uploaded a viral video on social media denouncing the conditions under which her son is being held.

Villa Clara (2 incidents)

Saily González Velázquez is under surveillance at home. The State Security agent on watch threatened a person who recorded him with a cell phone. “It will cost you dearly. You’ll remember me,” he said.

Santa Clara. Leidy Laura Hernández and Omar Mena are under surveillance at home.

Así reprimió el gobierno cubano el 10 de octubre, was first published on Cubalex.

Translated by: Silvia Suárez

Las Tunas Court Accepts Habeas Corpus Petition Prepared by Cubalex for Detained Activists / Cubalex

Cubalex, 29 April 2021 — The Provincial Court of Las Tunas has accepted the special Habeas Corpus petition, presented through legal assistance from Cubalex, in favor of the activists Taimir García, Adrián Góngora and Damián Hechavarría, detained on April 21 after peacefully demonstrating in that eastern city. The court required the police to present the detainees at a public hearing.

The public hearing, which seeks to clarify the facts, will take place on April 29, at 2:00 p.m., at the courthouse.

Cubalex applauds Jorge Luis García Fajardo, Annia Naomi Cortés, Jesús Canales Romero and Luis Fernández Reyna, judges of the judicial body, for working with the independence that their positions require, to comply with the provisions of the law and guarantee due process in this case.

Criminal Court Division One continue reading

Writ Granting Hearing in Habeas Corpus Proceeding

President – Gerardo Peña Canales

Judges –   Jorge Luis García Fajardo, Annia Naomi Cortés, Jesús Canales Romero, Luis Fernández Reyna

In Las Tunas on April 28, 2021

Granting a petition for habeas corpus presented by citizen Holmis Rivas Carmenate in favor of the detainees Taimir García Meriño, Adrián Miguel Góngora Santiesteban and Damián Hechavarría Labrada against the detention carried out by officers of the National Revolutionary Police

Judge Gerardo Peña Canales presiding –

As a result of the proceedings, the Court finds that a habeas corpus procedure has been filed on behalf of the detainees Taimir García Meriño, Adrián Miguel Góngora Santiesteban and Damián Hechavarría Labrada which requests that a hearing be held, seeking their immediate release on the grounds that their arrest and subsequent transfer to the Provincial Investigation Unit of Las Tunas is arbitrary.

Considering that the petition is exercised in the manner prescribed in article 467 et seq. of the Criminal Procedure Law, conforming as required, and according to what is pertinent.

The Court Agrees:

To schedule the date, time and place to hold a hearing for a habeas corpus proceeding.

Requiring the Provincial Instructor who handles the process to present the detainees Taimir García Meriño, Adrián Góngora Santiesteban, and Damián Hechavarría Labrada, to hold the hearing that will be held on April 29, 2021 at 2:00 p.m. in the Provincial Court of Las Tunas, having to submit a written form stating when and the reason for the arrest of these people, the crime charged, the dictated resolutions in effect and the other arguments considered in respect to the denounced violations by the person who presents the process, who must be served with a copy

In the more than 10 years that our organization has been assisting its clients in filing this legal remedy, this is the first time that a court has complied with the country’s rules and respected international standards. We believe that this first step could create a precedent for justice and respect for human rights.

The habeas corpus petition was filed in Court the day after the activists were arrested, when they protested a fine imposed on Hechavarría for selling medicinal plants. The event was broadcast live on Góngora’s Facebook profile and disseminated on social media with expressions of support for the activists. Hours later the altercation was covered on the Cuban TV Newscast. Humberto López described them as “criminals with terrible social behavior” and said that they would be turned over to the authorities.

Cubalex denounces such behavior as violating the principle of presumption of innocence. “When they report it [like this], all the judicial officials begin to prejudge it,” explains lawyer Giselle Morfi.

“In addition, most of the time, due to the inefficiency of the Central Criminal Registry, they don’t prepare a timely update of the record of prior offenses and they also bring that up without it being correct.”

The specialist adds that it also lends itself to confusion and parallel trials regarding prior criminal records because they impose fines that do not leave a record and people assume it is true, and their criminal history expands many times, without having it. “This goes against another important principle, which is the social reintegration of the arrested person. How can someone, who has been portrayed under a high-magnification lens as a criminal, return to their pre-broadcast state, even if they are tried and acquitted? It is unethical for press professionals to participate in this,” concludes the lawyer.

With some 30 habeas corpus proceedings presented by Cubalex to the country’s courts from January through March 2021, this is not the first time that a Court has granted the petition, recognized in Article 96 of the Cuban Constitution and enacted in the Criminal Procedure Law. On February 3, activist Hanoi Morán Dime was released after the Provincial Court of Havana considered the habeas corpus petition drawn up by Cubalex. But on that occasion the judges did not clarify the circumstances of the request or hold a public hearing, as required.

Translated by Tomás A.

CUBALEX Answers Questions From Our Users About the Events and Repression After July 11th / Cubalex

Cubalex, 6 September 2021

Why shouldn’t the July 11 protesters be prosecuted?

The protesters of July 11 cannot be prosecuted for the crime of public disorder, or any other. Firstly, Article 56 (New Constitution of Cuba, 2019) provides that “the rights of assembly, demonstration, and association, for lawful and peaceful purposes, are recognized by the State as long as they are exercised with respect for public order and compliance with the precepts established in the law.”

What is the penalty for the crime of public disorder?

The lawyer adds that the criminal code provides for a prison sentence of from 3 months to a year, for a person who without just cause, in public places, entertainments, or large gatherings, shouts alarms, or utters threats of a common danger. Obviously what happened on July 11 has nothing to do with the crime of public disorder.

The July 11 protesters did not commit a crime, they exercised a right that is recognized in the Constitution. The law conditions the exercise of the right of demonstration to continue reading

what is established in the law.

What is the law that governs the procedure to request permission for or to give notice of a demonstration?

There is no legal rule, therefore no type of crime is designated. The people who came out on July 11 to shout “Freedom,” to demand respect for their rights, were not committing any type of crime. It is also worrying that the people mobilized by Díaz Canel are not being judged. Are they selectively applying this law? Of course! They’re only applying it to those people who demonstrated against the system.

The people who participated in the July 11 protests as counter-protesters, members of the “rapid response brigades,” are not on trial. That’s called selective application of the law – applying it in a discriminatory way according to one’s way of thinking.

Let us not forget that the right to think freely — freedom of conscience, thought, and religion — is an absolute right, which does not admit restrictions even in times of pandemic such as we are in now, or in exceptional situations. I add that Cuba has not declared a state of emergency to restrict human rights.

It is true that it is an epidemiological situation, but if Diaz-Canel called a demonstration days after July 11 in the middle of a pandemic, what is the difference between one and the other? Well, the difference is the selective application of the law, and discrimination when it comes to prosecuting these people for the public interest.

Making an example is what they are doing.

They are seeking that Cuban society, that Cuban citizens, will inhibit themselves from expressing publicly and exercising their rights that are well-recognized by the constitution. All these proceedings against your families and against your friends, are so you in your community will not go back out again to demonstrate, to demand your rights, as recognized in the constitution. And that is why it is necessary to broadcast that “freedom is not requested, it is exercised.” That is what they are punishing, that people have exercised their freedom.

Read more: What to do about arbitrary detentions in Cuba 

Translated by Tomás A.

The Current Status of Luis Manuel Otero Alcantara’s Health / Cubalex

Garotte Vil Performance by Luis Manuel Otera Alcántera (Democratic Spaces)

Cubalex, 10 May 2021 [please note date*] — We present a summary of our report, which you can read in its entirety at this link.

The situation that Luis Manuel Otero Alcántara is going through is the result of the unequal relationship between the power of the State and that of the citizen who expresses disagreement with government decisions and demands respect for and the guarantee of fundamental rights.

The State abuses its power, and one example of this is that on May 2, after being on a hunger and thirst strike for a week, Otero Alcántara’s home was raided and he was forcibly transferred to the “General Calixto García” University Hospital, where he has been forced to abandon his strike, based on the medical treatment that was imposed on him, contrary to the Declaration of Malta, which the government claims to respect.

Previously, the State itself had denied on more than one occasion that the strike was real. The denial remains when they allege that Otero has a state of “self-reported voluntary starvation” and, paradoxically, has been confined and incommunicado for 9 days, under the supervision of a “multidisciplinary team that guarantees the recovery of his state of health.” The last note from the Provincial Health Directorate, the only source of partial information available, insists that he has recovered calories and that continue reading

a dermatologist gave him “a treatment,” without explaining which treatment and the reason for it.

The institution violated his right to medical self-determination, by not allowing him to voluntarily choose his admission, treatment, and the doctors who would attend him, functionaries of the State: Dr. Carlos Alberto Martínez Blanco, director of the hospital, deputy to the National Assembly and member of the Council of State, and Dr. Ifrán Martínez Gálvez, deputy director of the hospital, who represents himself as head of the specialized team that attends him personally, and even walks with the patient through the hospital complex, on camera. They also violated his right to informational self-determination when they disseminated the medical results from his clinical record through official media, presumably without his consent.

Currently, Luis Manuel Otero Alcántara remains incommunicado and only the official version is known without being able to verify with him or his relatives who have had closer contact, because the government refuses to provide detailed information to the press, to his friends, and to the San Isidro Movement that represents Luis Manuel. Meanwhile, lack of transparency continues to reign in Cuba and the principle of maximum disclosure is violated, by preventing access to information, contrary to international standards for the protection of human rights.

Translated by Tomás A.

*Ed. note: We currently are ’catching up’ on translations of Cubalex and reaching back to earlier months. Please note the dates on these posts.  Thank you.

A Doctor of Law Lies in the Official Media / Cubalex

Cubalex, Laritza Diversent, 2 September 2021 — It is irresponsible (as a professional and as a teacher) for the “Doctor of Legal Sciences” Mayda Goite Pierre to give her opinion on things she doesn’t know about or hasn’t even studied. If silence is bad, a cover-up is worse; her opinions misinform the public and confuse her students.

Ms. Goite, at least take the trouble to read the International Convention against Forced Disappearance that the Cuban State signed and ratified, and is therefore obligated (erga omnes) to follow.

Elements of forced disappearance

1. Deprivation of liberty

2. Direct intervention by state agents or others, with their consent and protection

3. Refusal to acknowledge the arrest and/or to reveal the fate or the whereabouts of the person concerned

MININT (Ministry of the Interior) agents have been committing crimes of forced disappearance before and after 11J (11 July).

Continuous or permanent nature of the enforced disappearance: continue reading

The act of disappearance and its execution

1. It begins with the deprivation of liberty of the person and the subsequent lack of information about the fate of the person;

2. It lasts as long as the person’s whereabouts are not known and the person’s identity is determined with certainty.

Once committed, the crime can be prolonged continuously or permanently until the moment when the fate or the whereabouts of the victim is established.

Forced disappearance is an illegal act that generates multiple and continuous violations of fundamental rights:

not to be arbitrarily detained,

not to be subjected to torture,

to life and to the recognition of legal personality.

Victims who suffer forced disappearance are treated contrary to inherent human dignity while in state custody.

Forced disappearance places the victim in a state of complete defenselessness and involves related crimes: the detained person is in a serious situation of vulnerability and risk of suffering irreparable damage to life and personal integrity due to the mere fact of prolonged separation and coercive isolation, which represents cruel and inhuman treatment.

Although the presentation of a Habeas Corpus petition obliges the courts to carry out judicial supervision of the actions of agents of the PNR (National Revolutionary Police) and State Security, under the guarantee of due process, there are legal obstacles and judicial practices that render this remedy ineffective.

Mrs. Goite, take the trouble to study the records that have been filed in the Provincial Court (I’m sure that you do have access) related to the requests to initiate this procedure and you will find a series of legal obstacles that make the Habeas Corpus petition ineffective, especially because they do not meet the standards that guarantee the protection of people against torture, ill-treatment, and forced disappearances, for the following reasons:

1. The law requires the petitioner for Habeas Corpus to designate “the place where the person is being deprived of it [liberty]; and the [government] authority or its agent, or the official who is maintaining” the deprivation of liberty against the person in whose favor the order of liberty is being requested. This requirement leaves people unprotected against possible forced disappearances, rendering the remedy ineffective.

2. The Criminal Procedure Law does not provide for the possibility of initiating a Habeas Corpus proceeding if a “provisional sentence or  arrest warrant” was issued in the process, which makes this remedy ineffective against arbitrary detentions.

If you follow my recommendation, you will also find judicial practices in the processing of this remedy that violate the fundamental principles that govern the judicial function, those which show the dependence on and complicity of judges with the agents of the Ministry of Interior, whom they are biased in favor of, to the detriment of the fundamental rights of detained persons.

When responding to the petitions presented, the acting judges:

1. Limit themselves to verifying that the documentation required by criminal procedural legislation was presented in the proceedings, without verifying the information provided in the request, and they only accept as valid the version of the authorities responsible for the arrest.

2. They never pronounce on the reasons for detention, violence, or use of force in arrests, incommunicado detention, forced disappearance and the right of access to defense, and they rarely report on transfers and places of detention where the person is held.

3. They almost never agree to hold an oral hearing, which is mandatory, and so they do not check for themselves the whereabouts and condition of the detained person.

4. Most of the time, they declare the petition inadequate and “improper”, arguing that the arrest took place “with all the procedural guarantees and within the established legal bounds.”

Lack of judicial control in the domestic context:

Judges evade their responsibility regarding judicial control of the actions of law enforcement officials and thereby:

1. They do not comply with the application of the law and fundamental principles of rights that govern the judicial function.

2. They favor arbitrariness, abuses of power, and violations of fundamental constitutional rights, especially the right to liberty and personal security.

3. They limit access to justice and fail to comply with the State’s international obligations regarding the prosecution of international crimes such as torture and forced disappearance, which are currently not included in [Cuban] criminal law, despite the fact that Cuba is a party to the respective international treaties.

There can be no doubt that the judges who have heard and denied the habeas corpus petitions presented as a result of 11J, are necessary cooperators in the serious human rights violations committed by agents of the Ministry of the Interior under orders from the political group that controls the State and Government, in order to guarantee their permanence in power, without political alternatives.

Translated by Tomás A.

Detentions and Besieged Activists: No One Can See Luis Manuel Otero / Cubalex

Cubalex, 12 May 2021 [please note date*] — Cubalex monitored acts of harassment against civil society from May 3rd to 9th, as well as government measures taken in the context of the pandemic and events of shortages of products and basic goods. This report also breaks down the selective internet outages that activists and dissidents have suffered, and highlights the threats, attacks, and violations of rights from the official press.

In one week, our organization documented some 15 people who were victims of home confinement. Most of them were surrounded throughout the week to prevent them from reaching the Calixto García hospital where the authorities are keeping Luis Manuel Otero incommunicado. In addition there were also 20 arrests mainly related to the status of Luis Manuel and the impossibility of accessing him.

We also recorded two incidents of violence against women activists at the hands of the police or public officials. In the case of Carolina Barrero, she was stripped and beaten by women agents in the presence of a male officer. Also in Havana, the activist Yeilis Cruz reported having been beaten by the member of the Party’s Central Committee, Humberto López, when she was filming him on the public street. The activist is currently being detained in the 100th and Aldabó prison in Havana, accused of an assault.

Download our weekly monitoring report on the human rights situation on the Island for more details.

Translated by Tomás A.

*Ed. note: We currently are ’catching up’ on translations of Cubalex and reaching back to earlier months. Please note the dates on these posts.  Thank you.