Author: Cuban Law Association / Cubalex

Correct interpretation of the law, a problem for us all / Cuban Law Association, Yureisy Ceballos Pendones

Yureisy Ceballos Pendones

Recently I was consulted about a case in an action which seems to form part of the working style of those who are, one way or another, employed in the law. I am referring specifically to the office of the Port of Cuba.

A young man decided to leave the country illegally, he was repairing a boat on the north coast of Camagüey when he was surprised by the authorities of the said organisation and went through the administrative process with a fine of 3000.00 Cuban pesos (CUP). continue reading

The kid immediately admitted his intention, affirmed to the functionaries his intention to put in good order the boat which they found on the ground in order to set out to sea once his work was done. Nevertheless they applied Art.1 Point g of the Decree 194, which establishes, and I quote,”to enter or leave or navigate through territorial waters, without the corresponding dispatch note or authorisation from the port office or disobeying a person duly accredited.”

As you can appreciate, what he was accused of did not occur in any of the actions described and checked, to apply correctly the regulation covering such conduct they should have referred to Art. 1 Point b, which basically refers to, “to repair vessels without due authorisation from the port office,” an offence which only carries a fine of up to 1500.00 CUP, on the basis of which I am now representing this citizen, on the basis of the considerations I have mentioned.

Following these comments, all we need to do now is consider on what does the office base its action, if roughly speaking they are aware of the injustice which results from interpreting the regulation in the way they have clearly set out.

Translated by GH

13 December 2013

On Property Rights (VIII) / Cuban Law Association, Mérida de la C. Pastor Masson, Esq.

Mérida de la C. Pastor Masson, Esq.

Following a corresponding written order, in relation to article 168, we will refer to the nature of joint ownership constituted by the participating State or its agencies, organizations, policies, etc., with a participating natural person and, which can be extinguished by a cause such as: Participation and allocation of goods in accordance with its nature.

A purchase by the State or any of its agencies or organizations from participating natural persons.

A purchase by natural persons from the participating State so long as this does not include a farmstead.

The sale of a said property and subsequent distribution of monies shall be allotted to co-owners (State and natural persons) in accordance with corresponding quota allocations.

In all all cases, purchase and selling operations shall —  let us be clear — be carried out at the official price should this be already fixed or, otherwise, shall be appraised and established by the government body empowered to conduct said proceeding.

From this chapter, we only need to mention that pursuant to article 169 which refers to joint co-ownership derived from matrimonial or community property, said communal holding would be in danger of dissolution when, under certain circumstances in case of divorce, the community of marriage had been dissolved by what our Family Codes 29-42 specify as intent to “malign.”  Future updates on this topic are currently under review.

Translated by: JCD

11 December 2013

Either Planet / Cuban Law Association, Rodrigo Chavez

Lic. Rodrigo Chávez

For my eldest son, Roylier Javier Chávez Dubrocq.

Countless conversations will never happen given the pigheaded, volatile and dim-witted habit our government has for maintaining a monopolistic grip and control on the flow of information, or should I say, disinformation.  Essentially, the State not only keeps us in the dark about our legitimate rights, but is sole proprietor of our intimacy and our ability to move or even think.

My son is back where the four condemned Cuban “anti-terrorists and Heroes of the Cuban Republic,” as they are better known back here, are imprisoned. Thing is: on this planet, all Cuba is like a prison and subjected to the whimsy of just a few.  By whimsy I mean the sort of fanciful cravings and doings of the few that are concealed from view but completely inhibit the people’s access — let alone execution — to even the most basic of rights.

From that other planet — where all rights are seen, heard and spoken — we are routinely exposed to movies and TV shows where legal recourse and due process are recognized.  On that other planet, all information is publicly shared among  nations.  Routine comparison to what has been called a revolution here really ends up sounding like a complete misnomer.

Big difference: My son is now poignantly aware of what I told him years ago and he can effectively measure the difference between what he studied here but experiences as his true life over there.

For this reason, whenever we speak his words are upbeat but always underscore that the Cuba yearned for should be one where democracy, freedom and ample human rights are given.

We’ll get there one day, son.  Surely we will.

Translated by: JCD

9 December 2013

Impartiality / Cuban Law Association

Wilfredo Vallín Almeida

Last month marked the second anniversary of the death of Laura Pollan, spokeswoman for one of Cuba’s most renowned dissident groups, the Ladies in White.

On that day, we gradually learned, many people in different parts of the country were detained, apparently because of official concern about demonstrations commemorating the anniversary.

Some of those detentions lasted for two to three days, as we learned directly from those affected.

Many of these people came to the Law Society seeking help in bringing charges against their captors for the way they had been treated.

In many countries a situation exists that has no place in Cuba: the independence of the judiciary in relation to the other branches of government.

In Cuba the police, both political and regular, belong to the executive branch, in other words to the state power. The Prosecutor’s Office (military or civilian) also belongs to the apparatus of the state (the government). The same applies to the courts.

Bringing a complaint to the Military Prosecutor to be presented before the court against the military that belongs to the same ministry, and that is also subordinate to government authority, does not seem to have much chance of success, especially when it comes to political issues.

The impartiality spoken of in Article 10 of the Universal Declaration of Human Rights, namely:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and of any criminal charge against them.

It requires, as you can read in the underlined portion, that the court be independent and impartial; in Cuba neither of these two things exist.

We continue to use that proposition in advising those who come to us, but we must lay out the truth, even if we don’t like it.

It is not likely that these allegations will have any result because the ideological obedience of the state institutions does not allow anything else, much less the punishment of its own members for actions “against the class enemy,” that is, those who don’t think like they do.

In a perfect justice system, every citizen should have the right that we are analyzing. But a critical element does not even exist in our national courts: their impartiality.

Translated by: Tomás A.

25 November 2013

Never-ending Wait / Cuban Law Association, Esperanza Rodriguez Bernal

Esperanza Rodríguez Bernal

Juan José returns to the Cuban Law Association for advice because the Compensation Fund has paid only 3,000 of the 39,000 pesos that he was awarded in the judgment of the People’s Municipal Court of Arroyo Naranjo as compensation for the injuries and damages caused by Ernesto, the driver of the Ministry of Agriculture truck that collided with his vehicle.

He told us that he has gone to the Fund many times and that the answer is always, “we have no money to pay.”

His health condition caused by the accident has deteriorated: he has had to undergo two operations on his arm, and two on his spine, declining a third because of the risk of being rendered completely disabled.

To make matters worse, his wife had to undergo surgery for breast cancer, resulting in expenses for transportation and food that his retirement pension cannot cover.

Juan contends that if he could have recovered the majority of the compensation he could at least have fixed their vehicle, and this would have allowed him to get a taxi-driver’s license in order to improve their economic situation.

A letter from the Director of the Compensation Fund dated March 13, 2012, informed Juan, among other things, that “the obliged or debtor has not begun to pay the civil liability imposed by the Municipal Court of Arroyo.”

The letter added that the Fund serves as an intermediary through which the injured party can collect, but it does not take on the responsibility of the debtors to pay the compensation, and therefore it has no funds for assuming that responsibility.

The judgment declaring Ernesto responsible was dated July 6, 2011, and in May 2012, Juan José had recovered only a fraction of it.

According to Article 26 of the Constitution, Juan has the right to make a request to confirm the legality of the judgment of the Arroyo Naranjo Court because it has not been complied with, as regulated in Article 474 in relation with Article 473 of the Labor and Economic Administrative Civil Procedure Law, as well as that established in Law 82 of the People’s Courts in Articles 6 and 7, paragraphs a), b), c) and f), which expressly states:

The courts must effectively implement the rulings that they issue and monitor compliance with them by the agencies charged with being involved in the implementation process, and must also perform the acts prescribed in the appropriate procedural laws, when the execution of their rulings lies with other state agencies.

How much longer must Juan wait to collect the compensation that the Municipal Court of Arroyo Naranjo ordered in a final judgment?

If the agencies charged with enforcing the law do not take the matter in hand, Juan’s wait will be never-ending.

13 November 2013

Disrespect for the Dead / Josue Rojas Marin, Cuban Law Association

Josue Rojas Marin

The brother of Juan Miguel Herrera Machado died some years ago, and on exhuming him, he found that the remains of eleven of his loved ones had disappeared from the family vault.

Given the horrendous knowledge he headed to the cemetery administration, where through the manager he learned that the vault now had another owner.  He immediately went to the National Revolutionary Police (PNR) and filed a complaint.  Some days passed with no answer, so he went again and found Prosecutor Leonardo Moreno Torres, of the township of Nuevitas, Camaguey, who oversaw the unit, and again related to him the events.  Months passed without a reply.

Devoted to his purpose, he approached the Chief of Prosecution of the township and who told him that by dealing with an atypical case he had to wait for a special process, that he saw no crime in what he related.  He again waited some more months, until he sought the free service of our Cuban Law Association and we took on his complaint.

In the medium term a criminal process was initiated against those responsible and they were sarcastically sentenced to light penalties.  Today we confront a second phase in the case because the tribunal did not rule on the location of the remains and the Prosecution which had the constitutional duty to carry out the investigations seems to have no interest in giving an objective answer to Juan Miguel in spite of his constant demands.

Translated by mlk

8 November 2013

Osbelgi, A Story to Tell / Alexis Piloto Cabrero, Cuban Law Association

Lic. Alexis Piloto Cabrero

Osbelgi Fábregas Ramos deposited the sum of $90,000 CUP (Cuban currency) in a Popular Savings Bank in Havana in 2001, finding out days after the transaction, in Camaguey, where he currently lives, the money was not in the bank.

Desperate after what had taken place and with the proof he had, among which was a bank slip showing a recent withdrawal, where the evidence of the credit coincided with his bankbook, he went back again to the capital and decided to report the events.

Not the plot of a movie, it was extremely real; the documents handed over which constituted the material proof of the crime were lost by the judges themselves in Havana and all he was left with was a receipt for the date where it happily shows he provided the documents for the legal process.

Up to that point, by his own accounts, the complaint sat on the desk of the Chief Prosecutor in Havana, who after more than 12 years a certain end awaits her, despite that according to Osbelgi through the letters that he presented to the Cuban Law Association (AJC), neither Francisco Soberon, ex president of the Bank of Cuba, nor the Attorney General of the Republic nor the Council of State and Ministers have given him an answer to his problem.  We’ll see what happens from now on, he has asked the Cuban Law Association for an answer from those who should provide one, and have forgotten to do so.

We’ll comment on the path of this story through the mazes which the law provides.

Translated by LYD

4 November 2013

Finally, A Crime or Not? / Cuban Law Association, Osvaldo Rodriguez Diaz

In Cuba prostitution is not a crime, this statement is repeated over and over by the media and by people who are considered to have due authority to do so.

In the special part of the Penal code on crimes, this figure does not appear.

Thus, many ask, “How is it that there are so many who are detained for this type of activity?”.

Our society, like others, suffers from it and also considers prostitution as a reprehensible vice, affecting morality and decency.

This “antisocial behavior,” as it is named in the criminal law, can be punished with rehabilitation measures of up to four years of detention in certain establishments.

These security measures, which are called “pre-criminal” and whose purpose is expressed in the law and complementary provisions and which prevent the subject from committing a crime, are imposed on prostitutes. So, is prostitution a crime or not?

If the objective of these security measures is to to avoid crime, then what crime can be committed when a young girl dedicates herself to the oldest profession?

We must look at the causes and conditions that have generated the excessive increase of this activity, and try to eliminate them at their source.

Despite the rigor of pre-criminal security measures, with almost the same regulations as other punishments, although classified as protected, many repeat their act.

In this area, a sad reality is presented in everything that revolves around prostitution, persons accused of and punished for renting a room to a prostitute, not for the exercise itself but as a temporary dwelling, or the hired driver that transfers them to where they will practice the oldest profession.

The subject presented is complex, others who are licensed in the matter should offer their opinion in respect to this matter.

Rodríguez Díaz

By Osvaldo Rodríguez Díaz

Translated by: Shane J. Cassidy

25 October 2013

We Shall See / Cuban Law Association, Wilfredo Vallin Almeida

By Wilfredo Vallín Almeida

Some Cuban citizens came to the Cuban Legal Association (AJC) seeking information and advice regarding a current issue: non-agricultural co-operatives.

It relates to forming a cooperative with a group of compatriots who–until now–have been state workers and would become members in this new modality.

But clearly they do not have the slightest idea what it is and they have not been properly informed about it.

It was nice that this morning we had a hearing in the Supreme Court related to legal recognition of the AJC as an independent NGO. The funny thing is that our counterpart there suggested, among its arguments, that all Cuban workers have at their disposal the information possible and necessary with regards to legal issues that affect that or that they would like to know about. And that was another reason that the AJC doesn’t need to exist.

Obviously there is a serious contradiction between our counterpart and the presence of these people asking us for appropriate advice.

Those living in the city, among other things, need to know

What elements are required for the existence of this form of economics, without which we can be in the presence of something, but not of a true cooperative as it is understood in the world.

What is free contracting and how does it relates to the issue of cooperatives.

What are the inalienable rights of workers in the preparation of documents that create the cooperative and its statutes.

What comparative examples do we have as background to have a broader and more accurate range of information on the matter.

What is the concept of cooperative ownership and the use, enjoyment and disposition that cooperatives have regarding it.

And some more that I will not put here so as to keep this brief.

I want to believe that what happened five years ago will not happen now, when the omnipresent and all-knowing came to tell us that WE COULD NOT EXPLAIN to our compatriots the rights which the Criminal Code of Procedure Act confers unto them.

Are these times any different from any previous ones?

We shall see.

Translated by: Shane J. Cassidy

16 October 2013

Ignorance Hurts / Cuban Law Association, Osvaldo Rodriguez Diaz

Osvaldo Rodríguez Díaz

Guided by low-flying vultures, three young men, who moments before had been cutting wood on the mountain in order to build a fence, found the remains of a cow, which 24 hours earlier had been stolen and killed by unknown rustlers.

Though they could smell the odor of meat exposed for a long time in our hot climate, the newcomers felt that it could be useful for their dogs, or perhaps with some treatment, for their own consumption. With their tools they then proceeded to cut the bones along with the remaining meat and hide.

The task was interrupted by the police, who arrived with the animal’s owner, who already knew where the animal had been slaughtered, having found it before youngsters had, also guided by the birds of prey.

At noon it was decided to incinerate the remains of the animal and what the three boys had cut up, necessitated by the state of decomposition.

Not knowing who the perpetrators were and powerless to discover their identity, the police took the three young men as defendants to the police station. Because one of them was a soldier, it was decided that the case would be transferred to military jurisdiction, unfortunately for the three.

Over three months passed before it was presented to the regional Military Court based in La Cabaña. Do not be shocked:

– Acquisition of beef slaughtered illegally, under Article 240.1.3 of the Criminal Code, and

– Illegal Possession of Weapons, under Article 214 of the Criminal Code, both accomplished.

The latter charge, perhaps to justify the prison sentence, which exceeded the minimum limit for the first offense, which was charged from the outset.

The penalty imposed was six months imprisonment for both offenses, or three months for each one.

The incorrectness of these sentences is beyond absurd. To claim that a rotting carcass, which had to be incinerated, has the same character as meat fit for human consumption, as required by law, is extremely unjust.

Further, to treat the woodcutting tools used to cut bones as illegal weapons is breathtaking to any jurist. There is no known way to relate and illegally connect the two offenses, one a crime against public order, the other a crime against the economy.

How do these inexplicable things happen?

Someone should review these cases of clear judicial blundering.

The saddest thing about this story is that the people in court reacted with happiness, considering the sentence appropriate because, as the prosecutor explained, they had already served three months of the six, and had almost become eligible for probation.

Will they give it to them?

30 September 2013

Where the Boss is Judge and Jury / Cuban Law Association, Eliocer Cutino Rodriguez

Photo taken from panoramio.com

Lic. Eliocer Cutiño Rodríguez

Many people work in the TRD* chain of shops, subject to what may be called military regulations. A vast number of those workers are unaware of the rights which could help them in the face of possible violations of labor discipline.

How could a process be fair in which, per Resolution 1072 of 2011 which regulates this activity, the person who issues the sanction is the same person who addresses the initial claim?

Setting aside, obviously, the possibility that this person recognizes that he made a mistake in the first place and the affected party gets a favorable response.

Nevertheless, workers who appeal – because they disagree with the outcome – would only have the route of going back to their immediate bosses who disciplined them in the first place, without having the slightest possibility of the judicial system hearing the matter and perhaps resolving it in accordance with the law, which by constitutional mandates would apply to this situation.

It is a process lacking in transparency and impartiality, which has been abolished for many years in the contemporary legal world.  This idea could be tried among the TRD workers in the discussion of the future Workers’ Code in this country and perhaps lay a new foundation for what, on the issue of labor discipline, the military institutions have encouraged, completely alienated from the institutions that administer the law such as the Popular Courts.

*Translator’s note: TRD is the acronym for “Tiendas de Recuperacion de Divisas”; literally “Stores for Recovering Hard Currency.”  These are the stores operated by the State which sell only in hard currency (Cuban Convertible Pesos, or CUC). They are the only source of many basic products available legally nowhere else (as well as luxuries), and are designed to “recover” the cash sent to Cubans as remittances from friends and family abroad, a function clearly stated in the name the State has chosen to give them.

Translated by GH

20 September 2013

About the Family / Cuban Law Association, Rodrigo Chavez Rodriguez

Lic. Rodrigo Chávez Rodríguez

The great majority of Cuban families are not illiterate but they don’t know  that there is a Family Code. They may also be oblivious to the fact that in the Constitution of the Republic of Cuba (which definitely needs to be changed) you will find in Chapter IV, Art. 35; The State protects the family, maternity, and marriage … Until someone explains it to me, and I manage to understand it and feel convinced, I will perhaps continue to be mistaken or each time clearer in my thoughts.

Is it that when people separate, including parents leaving their kids at an early age to emigrate to other countries, almost always for economic reasons, the State protects protects maternity and the family? From what I have just said we can deduce that sustainable marriage cannot exist when, for this or other reasons, the links of a marriage, or voluntary union or whatever, are dissolved, and nor can the State protect marriage and the family, nor indeed the very low level of pregnancies among Cuban women due to  lack of many indispensable things.

In other families, aware of what has been decreed and stipulated in the Articles of the above mentioned 1975 Family Code, which can apparently assert that knowledge; this maternity, this marriage and the family are also split up, with the difference that in the case of migrants, here it is about political reasons, their rejection of the government, because they lack one of man’s most precious assets: FREEDOM, and although it brings with it separation and distance from their family, it is necessary for them to search for it and they do find it.

The state recognises in the family the fundamental component of society and attributes to it responsibilities and essential functions in the education and upbringing of the new generations, referred to in Art. 38 of the Law of Laws: Parents have the duty of feeding their children and supporting them in the defence of their legitimate interests and in the achieving of their true aspirations; as well as in contributing actively in their education in their upbringing as useful citizens, ready for life in a socialist society. Why in a “socialist society”? Why if they have to support them in their legitimate interests and just aspirations, and that may not be the interest nor aspiration of the family?

Translated by GH

13 September 2013

The Party Responsible / Cuban Law Association, Wilfredo Vallin Almeida

Wilfredo Vallín Almeida

Cuba has been a topic of discussion by The United Nations Council on Human Rights in Geneva, which has concluded its most recent Universal Periodic Assessment.

The report, signed by 132 countries, included 293 recommendations made to the government in Havana for correcting deficiencies in the area of human rights.

There is an interesting contrast between what the current Cuban leadership has to say about its own performance in this area and the latest speech by the General-President to the National Assembly of People’s Power.

According to the official report issued in Geneva, the Cuban government’s compliance with its commitments in this area has been exemplary. The current head-of-state, however, has publicly acknowledged problematic domestic issues, stating that “we are at the edge of an abyss” and “we would be responsible should the Revolution fail.” He had also indicated that state institutions are not fulfilling their responsibilities as called for under Cuban law.

While there have been reports of economic growth, it has been acknowledged that this growth has not had any positive impact on the lives of average Cubans. Meanwhile, the cost of living continues to rise while salaries remain stagnant.

The life of a nation, in all its many manifestations, is a complex apparatus in which any action taken in one area (the political, for example) inevitably has repercussions in other areas (such as the economic and social).

I believe it is a good thing that we can air these issues — which concern everyone — openly, without secrecy and with ever greater transparency.

But there is a question we never hear, at least publicly, about this topic: Who is responsible for all this chaos?

15 September 2013

Where Does That Leave Us? / Cuban Law Association

Wilfredo Vallín Almeida

I was flipping through a magazine. It’s called Current PC. It has caused me some anxiety about a reality I am just discovering: although the magazine is in Spanish, my native tongue, I can barely understand what it says; I don’t know the meaning of countless technological terms.

The person who gave me the magazine to browse receives it regularly at home. He’s not a computer specialist, but someone who wants to keep abreast of new developments in technology in a form that is accessible and understandable for him.

Some of the arrticles are:

– 10 Super Plug-ins for Google Chrome

– Mastering Evernote Completely

– Move from Windows 7 to New Windows 8

– Mega, 50 gigabytes of memory for free

– Obsessed with online security.

– How to leave Instangram.

– Redecorate your home with Home Designer.

Reading (or rather trying to read) the articles, I can’t avoid a troubling question: Where are we Cubans in relation to all this? As technological development advances at breakneck speed, how long will we Cubans be denied the right to have the internet at home?

To try to explain myseslf with an example, I quote the following small fragment of the article “When the Internet is Everywhere” from this magazine:

The future has a poetic name, the Internet of Things … Health is one of the sectors that can benefit from the Internet of Things. The right technology will make many doctor visits unnecessary. And doctors can know — in real time and from a distance, thanks to sensors that their patients carry — blood sugar, blood pressure or heart rate itself …

The article continues with a description that seems to me more science fiction than science fact and current technology.

And in the face of all this, where does that leave us?

3 September 2013

About the Law of Property (IV) / Cuban Law Association, Mérida de la C. Pastor Masson

Lic. Mérida de la C. Pastor Masson

In terms of Civil Law, we have in our society an interesting daily theme which, because it is unknown, we are led to act unwisely on many occasions.

We have all once said “this is mine”, “this is my house”, “this is my car”, and these words cover in reality those assets which are intended to satisfy the material and spiritual needs of the holder of the item, that’s to say, its owner.

Included in personal property matters are your salary, the house which you gain some kind of legal title to, as well as vacant lots and personal and family-owned working materials (Art. 157, Section 5).

These resources (relating to work), are well-defined as being unable to be used to obtain income by way of exploiting the labor of another.

The state does of course also recognise property owned by societies, associations and charities as well as mixed and joint undertakings, as well as that belonging to other legal entities of a special nature, which are governed by the law and treaties as well as the statutes and regulations of the legal entities in question, which supplement the Civil Code.

As I said before, it’s an interesting subject and therefore I will continue on this property theme and in Chapter 3 will deal with the body of law dealing with shared ownership. In this manner we will carry on until we exhaust the commentaries relating to property in the current Civil Code.

Translated by GH

9 September 2013