Diaz-Canel vs Ordinary Cubans: Equal Before the Law?

Díaz-Canel appearing on the Roundtable TV show on Cuban State television (pre-pandemic) (Twitter)

Cubalex, Lawyer Julio Alfredo Ferrer Tamayo I myself, Julio Alfredo Ferrer, filed a complaint against President Miguel Mario Díaz-Canel Bermúdez with the Attorney General’s Office of the Republic (FGR) for the crime of spreading epidemics. José Luis Reyes Blanco, promoted in August 2019 to FGR prosecutor by the State Council, quoted me and responded verbally.

Reyes Blanco argued that the president’s conduct did not constitute an administrative or contraventional offense nor did it typify the crime of Spreading of Epidemic, because there was no contagion or transmission of the epidemic. In view of the institution representing this criminal figure, according to doctrinal definitions, it was a crime of concrete danger.

Such an argument is an error and an attempt to guarantee impunity to public officials to the detriment of the right to equality and non-discrimination of Cuban citizens. continue reading

Debate of recognized experts on criminal law on the differences between “abstract danger” and “danger”

According to Doctor of Legal Sciences Renén Quirós Pírez, the classification of offenses of danger into “abstract” and “concrete” by Santiago Mir Puig had obscured the issue. He added that Gonzalo Rodríguez Mourullo understood that it was a contradiction to continue talking about abstract danger where there was indeed a concrete danger.

According to Dr. Quirós, the terminological question did not change the concepts. The jurist defined crimes of “concrete” danger as those in which the danger to the good as protected by criminal law is a requirement of the crime itself or one of its constituent elements. He exemplifies it with the following crime from the Cuban Penal Code:

“It is punishable by deprivation of liberty from three months to one year, or a fine of one hundred to three hundred shares*, or both, for: while having the responsibility of the operation of a drinking water supply for the population, for negligence or non-compliance with established standards, damages the quality of the water, endangering the health of the population.” [1].

This crime is of concrete danger, because the standard requires that the person who commits it, either by negligence or non-compliance with established standards, damages the quality of the water.

Crimes of “abstract” danger are those in which the act is punished because the behavior itself is dangerous. It adds, that action or omission is prohibited, because it creates a situation in which it is possible to damage the good, as protected by criminal law. The person driving a vehicle in a state of alcoholic intoxication is punished, even if in such a state he does not run over or injure someone or cause damage [2].

The Danger in the Crime of “Spreading Epidemics”

The Penal Code sanctions with imprisonment of three months to one year or a fine of between 100 and 15 thousand pesos to “in breach of measures or provisions issued by the appropriate health authorities for the prevention and control of communicable diseases and programs or campaigns for the control or eradication of serious or dangerous diseases or epidemics” [3].

On 27 May 2020, the First Criminal Chamber of the Provincial People’s Court of Cienfuegos ratified the one-year and six-month penalty of deprivation of liberty for Keilylli de la Mora Valle for a number of crimes, including the spreading of epidemics.

The Appellate Sentencing Act says “that the crime of spreading epidemics only requires that the perpetrator fails to comply with the measures provided by health authorities for the prevention and control of epidemics, and the prosecutor argued that, “in the case under review the accused actually failed to comply with one of those measures which is the correct, permanent use of a mask when taking to the streets…”

President Díaz-Canel Bermúdez also did not wear the mask correctly or maintain social distancing, when on November 29, 2020 he participated in the rally called “TANGANAZO”in Parque Trillo. He wore a mask like a bib while delivering a short speech, practically on top of the people gathered there.

All, including the highest executive authority of the Cuban nation, broke the measures or provisions issued by the appropriate health authorities in order to confront Covid-19. The Ministry of Public Health established as mandatory the correct use of the mask outside homes or places of residence, and social distancing in all public and private spaces[4].

Following the judgment sustained by the First Criminal Chamber of the Provincial People’s Court of Cienfuegos, regarding the danger in the crime of Spread of Epidemic, the President of the Republic must be held criminally liable in the same way as Keilylli de la Mora Valle, who was imprisoned for less dangerous acts than those committed by Díaz-Canel Bermúdez.

The right to equality before the law

The Public Prosecutor’s Office should seek the same legal treatment that it gave to the President of the Republic, to all those who like De la Mora Valle were punished for the crime of Spreading of Epidemic. It should push forward in favor of these others, the Review procedure before the Supreme Court, by requesting annulment of sanctions and compensating those who were unjustly imprisoned.

In the television program Mesa Redonda (Roundtable) of June 6, 2020, the Attorney General of the Republic, Yamila Peña Ojeda, reported that the spreading of epidemics was one of the criminal conducts associated with the pandemic, and that by then they had referred 1,868 criminal cases to the courts. Rubén Remigio Ferro, President of the Supreme Court, noted that 1,856 people were tried and 1,839 sanctioned for failing to comply with health measures to deal with COVID-19.

This issue is of vital importance to Cubans, especially to those imprisoned for the same crime for which the President of the Republic was exculpated. I take this opportunity to convene all the jurists inside and outside the Island to offer their considerations on the corrupt actions of the Public Prosecutor’s Office.

[1] Paragraph ch) of Section 1 of Article 194 of the Penal Code

[2] Paragraph a) of Section 1 of Article 181 of the Penal Code

[3] Paragraph 1 of Article 187 of the Penal Code

[4] Paragraphs a) and c) of Section “Tercero” of Resolution 128/2020 of the Ministry of Public Health

*Translator’s note: In Cuban legal codes fines are expressed as “shares.” In this way the definition of a “share” can be changed in one place, and all the fines throughout the code are automatically changed.

Translated by Hombre de Paz

Luis Robles, the Young Man Who Peacefully Protested With a Poster In Havana Vieja Who is Under Arrest / Cubalex

Luis Robles Elizastigui protesting in Havana against the imprisonment of the rapper Denis Solis

Cubalex, 16 December 2020  — On December 5th, Luis Robles Eliazastegui demonstrated in Blvd. San Rafael in central Havana. Various people videoed his protest and also the moment in which police officers arrested him without any opposition or resistance on his part.

According to information we have received he has been held at the State Security headquarters in Havana, known as Villa Marista, accused of disregard of the legally-constituted Authority and of terrorism. In Article 56 of the present Constitution, the state recognises the right to licit and peaceful protest, which does not breach public order and accords with established legal precepts.

The right to protest  is an element of freedom of expression, but in Cuba it is criminalised in relation to those who criticise the government. But, on a discretional basis, the Penal Code considers participation in protests to be an offence against public order if there is infringement of the regulations pertaining to the exercise of such rights. continue reading

To date, there is no law which protects our right to demonstrate. Nor are there legal or administrative procedures for notifying or requesting authorisation for a demonstration, nor legal mechanisms for appealing against decisions to deny permission for a demonstration. While it is clear that the exercise of human rights may be restricted in order to safeguard public order and the general wellbeing of a democratic society, it is not acceptable in international law to impose restrictions on human rights based solely upon motives of discrimination.

Discretionally, and based upon political motives, demonstrations in defence of government ideology are permitted, such as in the case of Trillo Park a few days ago, and this constitutes discrimination institutionalised by political motives.

We would remind the Cuban government that no state or group of people is permitted to undertake or develop activities or take actions intended to suppress any of the rights or liberties recognised in the Universal Declaration of Human Rights. We demand the immediate release of Luis Robles Eliazasteguis.

Translated by GH

What Are the Guarantees of Due Process in Cuba? / Cubalex

Arrest of a member of the Ladies in White in Havana. (EFE)

Cubalex, 24 December 2020 — A person’s right not to be subject to torture and other forms of treatment is connected with the right not to be required to self-incriminate or to confess guilt. This right extends to any form of exercise of duress.

Rights before and during interrogation

To be informed of the basis upon which one is considered to have committed an offence covered by the criminal code (section f, Art. 95 of the Constitution).

To remain silent, without such silence being construed as a determinant of one’s innocence or guilt.

To be advised that anything that the accused may say may be taken down and used as evidence.

That a spouse, partner or relative extending as far as the fourth degree of consanguinity and second degree of affinity; (section e, Art. 95 of the Constitution) may not give evidence against them. continue reading

The right to a lawyer of their choice, or officially provided without charge, and to be questioned in their presence, unless they have previously rejected such assistance (section b, Art 95 of the Constitution).

To enjoy the assistance of an interpreter.

That all persons present at an interrogation shall be identified.

That a true and complete record is to be kept of any interrogation, preferably in audio and video form.

The right to medical examination and services.

Translated by GH

Organizations Speak Out Concerning the Wave of Repression in Cuba / Artículo 19 and Cubalex

Artículo 19 and Cubalex — Article 19 strongly condemns the wave of arbitrary arrests that have been taking place since Thursday, November 12, against independent journalists, human rights activists and political opponents in Cuba. These events have been accompanied by interrogations, threats, seizures of work equipment, beatings, among other assaults.

The aggressors have been agents of the Cuban State in their official capacity, belonging to the organs of State Security (Seguridad del Estado), Military Counterintelligence (Contrainteligencia Militar) and the National Revolutionary Police (Policía Nacional Revolucionaria, PNR). As part of the modus operandi of these officials, detainees have been transferred to several police stations in the city and have remained missing on average for more than twelve hours.

Arbitrary arrests began on November 12, when a group of activists, journalists, artists and opponents concentrated in the vicinity of the Cuba and Chacón police station, in the municipality of Habana Vieja, Havana, to demand the release of Denis Solís González. He had been arbitrarily arrested a few days earlier and transferred to that police station. In his detention, the most basic guarantees of due process were violated, and on Friday, November 13, it was said that he was allegedly transferred to Valle Grande prison in western Havana for a summary trial for the alleged commission of a crime of Contempt. continue reading

The people who were arrested during these days were: Iliana Hernández Cardosa, Luis Manuel Otero Alcántara, Héctor Luis Valdés Cocho, Anamely Ramos González, Denis Solís González, Juan Antonio Madrazo Luna, Maykel Castillo Pérez, Oscar Casanella, Omara Ruiz Urquiola, Katherine Bisquet, Adrián Rubio, Jovián Díaz Batista, Jorge Luis Estien Bryan, Alfredo Martínez, Michel Matos, Lázaro Yuri Valle Roca, Eralidis Frómeta, Yunier Gutiérrez and Yasser Castellanos. As of today, Sunday November 15, some of these citizens still persist in their demands in front of police facilities.

These facts constitute a flagrant violation of international obligations for the protection and guarantee of human rights, which the Cuban State has assumed under International Law (Derecho Internacional). It is also a violation of the recommendations made under the universal system of protection of human rights, both by bodies and agencies belonging to it, as well as by other States during the last Universal Periodic Review of the Republic of Cuba (Examen Periódico Universal de la República de Cuba) in 2018. Similarly, the arrests of these persons are violations of inter-American and universal standards concerning the rights of assembly and peaceful demonstration, freedom of expression, the right to individual freedom and security, due process, access to justice, among others.

The article Organizaciones se pronuncian por la ola de represión de Cuba was first published in Cubalex. Indexing topic: San Isidro Movement (MSI)

Translated by: Hombre de Paz

 

Who is Felix Perez and Why Might He Get Locked Up? / Cubalex

 

Cubalex, 18 August 2020 — Last April 22nd, the activist Felix Perez Salazar presented himself peacefully at Unit 5 of the PNR (National Revolutionary Police) in Santa Clara, to accompany other members of the opposition who were protesting fines imposed for the supposed incorrect use of face masks. They detained him there for over two hours and he was threatened with imprisonment for coming to defend the others.

After letting him go, a State Security officer, known as Daniel, imposed on him a fine of 3 thousand pesos, under Art. 8 of the Penal Code, as amended by Legal Decree 310. Up to this day, the accused does not know the reason for the penalty.

This regulation authorises the police to act as judge. That is to say, if the police consider someone has committed an offence, contempt of court for example, this Article applies (which includes payments between 3 and 5 thousand pesos). The decree deprives the accused of his right to apply to a tribunal where evidence has to be presented in public, and to the assistance of a lawyer. continue reading

A month later, Felix, vice president  of the Leoncio Vidal Civil Command, was fined for misuse of a face mask (he used it under his nose), when he went to see his mother, who lives downstairs. The distance between the two homes is just one staircase. On the sidewalk, while he was already in the entranceway, he was stopped by four uniformed patrolmen who imposed the fine.That same day Perez Salazar had gone to a meeting of the opposition organisation, called because of his protest at the fine which he took to be a political reprimand for his activity.

This 9th of August, an official visited the activist in order to collect the fines imposed and Felix responded that he would not pay what he considered to be arbitrary impositions.

Now the activist is in danger of being imprisoned for the offence of non-compliance with the sanctions for his offences. The Tribunal may condemn him to six months deprivation of liberty. Felix may be summarily judged without benefit of a lawyer, just as has happened with other activists.

Translated by GH

Urgent: Cuban Police Detain the Rapper ‘El Osorbo’ and Violate His Rights / Cubalex

The Cuban rapper Maykel Castillo Perez, known as “El Osorbo.” (Archive photo)

Cubalex, 5 August 2020– The rapper Maykel Castillo Perez, known as “El Osorbo,” was arrested on August 3rd in El Cristo Park, between Teniente Rey and Villagas in Havana Vieja. It happened around 11:00 at night when several plainclothes state officers, and also uniformed ones, took him in a patrol car to the police station in Calle Zanjas.

On August 4th, his detention was contested in the Havana Tribunal Provincial, by way of a constitutional application for Habeas Corpus, which is supposed to be resolved within 72 hours of its presentation.

On the same day, his wife went to the police station in Calle Zanja, and the police officer (registered number 06194) denied her permission to give him some toiletries. The official claimed that only State Security is authorised to take any decisions on Maykel’s case. continue reading

When she insisted that she wished to speak to whoever was denying her her rights, the officers informed her that Castillo Perez had been moved to San Miguel de Padron police station in the capital

Today, August 5th, 2020, his wife and two friends of the artist, Anamely Ramos and Omara Ruiz Urquiola, went to the San Miguel de Padron police station. They were not informed why Maykel had been detained, nor on what supposed charge. They explained that it was a matter of “CR”, an abbreviation used to refer to “Counter-revolutionaries”, and that “it is a problem for State Security”. Nevertheless, it is the police who are violating his rights as a detainee.

Cubalex has the registered numbers of the officers who are denying Maykel his rights as a detainee. We would remind you that compliance with an order is no justification when the order is illegal.  You need to remember that, because we are gathering evidence against you as violators of human rights.

Translated by GH

Cuban Police Detain the Reporter Esteban Rodriguez and Violate his Rights / Cubalex

Cubalex, 5 August 2020 — Esteban Lazaro Rodriguez, a reporter with the independent digital media ADN, was arrested at his home at 400 Calle Villegas, between Teniente Rey and Muralla, in Havana. The independent journalist was seized around 12:30 in the afternoon, on August 4th, 2020, by several plain clothes state officers, and also some in uniform, one of whom had the registered number 04220.

While he was being arrested, Rodriguez Lopez was recording on social media. He could be seen while he was being arbitrarily arrested by the officers. At no time did they show an arrest warrant or explain the reason for it.

The arrest was contested on August 4th before the Tribunal Provincial in Havana, by way of a constitutional application for Habeas Corpus, which is supposed to be resolved within 72 hours of its presentation.

According to information from family members, Rodriguez Lopez is in the Cotorro police station.

Translated by GH

Jose Daniel Ferrer Released From Prison / Cubalex

José Daniel Ferrer, leader of the Patriotic Union of Cuba, from before his recent arrest.

CUBALEX, 3 April 2020: The Cuban opposition leader Jose Daniel Ferrer, coordinator of the Patriotic Union of Cuba (UNPACU) has been given his freedom along with three other activists who had also been jailed.

Ferrer was locked up October 1st, 2019, and was tried last February 26th, along with the other members of the opposition, Roilán Zárraga Ferrer, José Pupo Chaveco and Fernando González Vaillant.

According to his brother, Luis Enrique Ferrer, UNPACU external representative, his prison sentence of four and a half years was replaced by house arrest.

The opposition leader spent 6 months in prison, following a highly irregular process, in which the Cuban regime violated its own laws. continue reading

March 12th was the date when the Tribunal should have passed sentence on the four members of the opposition. Nevertheless, in contravention of existing laws, the verdict was never made public. During the trial, the Attorney General ratified the recommendation for nine years for the UNPACU leader and seven and eight years for the other activists.

According to statements by Julio Ferrer Tamayo, a lawyer from the independent Cubalex Center for Legal Information, the judges charged with dispensing “justice” in the Ferrer case should be subject to disciplinary proceedings for failure to comply with the date set down for notification of sentence, in accordance with Art. 31 of the Law of Penal Procedure.

A wide international media campaign was mounted to urge the Castro regime to set free the UNPACU coordinator, along with the rest of the political prisoners.

UNPACU also publicised their concern over the condition of their principal leader, and for those Cubans in jail for peaceful political activism. The opposition group demanded the immediate freeing of all political detentions which were part of the extraordinary measures taken by the Cuban regime within the the state of emergency in force throughout the country.

 Translated by GH

How Does The Cuban Government Keep An Eye On You? / Cubalex

Cubalex, 6 January 2020 — After the publication of Decree-Law No. 389/2019, special techniques of investigation were introduced, including undercover operations, successful collaboration, the use of electronic or other types of surveillance and controlled deliveries.

The same Decree-Law establishes that these techniques are appropriate or necessary for the investigation of criminal acts, which, by their gravity, connotation or organization require them, including operations whose origin or destination are outside the country.

Although the use of these measures is not new in the Cuban context, in the particular case of electronic surveillance there has been a surge in their application now that more people have access to cell phones and Internet accounts, and it’s the first time it has been legalized. The benefit of this new reality is that at least the general guidelines for their application are now published. continue reading

Another positive element is that, at least formally, the Ministry of the Interior is required to guarantee confidentiality of the information obtained through electronic surveillance if it has no relation to the crime. The information will not be divulged and will be destroyed. In addition, conversations between the accused and defense counsel cannot be recorded.

However, there is a big drawback to the regulation, because it can even call into question the constitutional recognition of due process (Article 95), the right to privacy (Article 48) and the inviolability of correspondence (Article 50).

The use of the above-mentioned techniques will not be authorized by the court but by the prosecutor. According to Article 110, paragraphs 2 and 3 of the Law of Criminal Procedure, whatever is drafted after the new modifications will allow prosecutors to authorize the application of the special investigation techniques.

Translated by Regina Anavy

I Have No Confidence in the Cuban Constitution / Cubalex, Julio Alfredo Ferrer Tamayo

Cubalex, Lic. Julio Alfredo Ferrer Tamayo, 13 November 2019  — Unfortunately, in the Cuban legal context, there is no Constitutional Tribunal, or, to put it another way, there are no constitutional guarantees. Along with many lawyers, non-lawyers, and legislators as well, I was hoping for a change. Along with other colleagues, I had confidence in the national constitutional tradition, and especially in the milestone represented by the Constitution of 1940, recognised as the most advanced in Latin America, for its time;  nevertheless, it didn´t work out like that. Everybody, whether they voted yes or no, continues with no constitutional guarantees.

In order to be implemented, the new text, in force since April 10th, 2019, needs legislation, which hasn’t yet been prepared, and requires various time periods in which to do it. This gap has given rise to what many have called the “legislative gap”, or “legal limbo”, which is simply a period of legal system paralysis, while waiting for the legislation to be passed. At the moment, the Constitution remains an undelivered message.

To sum up, we Cubans have to wait six months for the new Electoral Law regulating election of representatives to the National Assembly, its President, Vice President, and Secretary; as well as the Council of State, and the President and Vice President of the Republic. And this is going to be delayed even further by other processes. For example, the regulations for the National Assembly will be delayed a year, and two years for the Council of Ministers, the provincial and municipal governments, and their administrative councillors. continue reading

The enactment of the law on Popular Tribunals is eighteen months away, as are also the modifications to the Laws on Penal, Civil, Administrative, Employment and Economic Procedures, and also the legislative modifications needed to effect Art. 99 of the new constitution.

As far as the Family Code is concerned, which is the window which still holds out the prospect of a marriage of equals, there are still 24 months before the start of the popular consultation process and the relevant referendum.

“The most completed and advanced of the Cuban constitutional texts”, which is what Homer Acosta Alvarez, the Secretary of the Council of State, has termed the new Constitution, will be applied bit by bit, because it needs, according to Homer himself, no fewer than 50 items of legislation. And, really, it is difficult to be optimistic about it.

The legislation which backed up the 1976 Constitution was not a happy memory. We can recall the Law on Migration (it dealt with the right to leave the country with an exit permit, a carte blanche, authorised by the Ministry of the Interior), or the Law on Association, and its Regulations (it conditioned the right of association upon prior permission of the Ministry of Justice).

We can think of other equally disastrous legislation, such as Order 149 (which violated the right oto personal property enshrined in Art. 21 of the said Constitution. And also Decree 217 of 1997 (imposed innumerable legal requirements on Cuban citizens of other provinces wanting to reside permanently in Havana).

What we can learn from such legislation is that they are a double-edged sword, holding back and restricting rights proclaimed in the text of the constitution, preventing citizens from exercising them.

Will it be the same this time around? I think so. We Cubans need to be very watchful over this legislation, because they will have been enacted without prior popular consultation, and therefore people will not be able to influence the contents, in spite of the democratic process they have been boasting about.

We remember that Art. 26 of the old Constitution recognised the right of every individual who suffers loss or is prejudiced by inappropriate action by officials or agents. Later, this right was restricted by Section 2 of Art. 96 of the Civil Code, which subordinated its exercise and implementation to declarations of illegality on the part of the superior state authorities. That is to say, if the superior state authority thinks it is not in the state’s interests, there will be no compensation, or indemnification, or any constitutional rights worth a bean.

This right, with identical wording, is anticipated in Art. 98 of the new Law of Laws. It remains to be seen if the regulations which are to enact this constitutional precept, let’s call it Civil Code, will set up a legal mandate of subordinate status, constraining the right to compensation and indemnification for damages improperly caused by state authorities.

If the new Constitution had conceived of a Tribunal of Constitutional Guarantees or other similar entity with the authority and structure necessary to protect the constitution, then those persons who had seen their rights infringed would have had an organisation to go to in order to defend the constitutional position. That organ would be a defensive wall against arbitrary action.

Translated by GH

Executive Order 389/19: Big Brother is Watching You in Cuba / Cubalex

Cuban authorities arrest a Cuban human rights activist from the Ladies in White

CUBALEX, 10 December 2019  — Tapping phone lines, using electronic devices to follow you around, planting cameras, monitoring mail and personal conversations, taking video recordings without permission; these have been the Cuban regime´s habitual practices. Up to now it was all done arbitrarily and illegally, but last month they approved “the use of electronic surveillance” without need for previous judicial authorisation.

Executive Order 389  of the  Council of State, signed by the head of state Miguel Diaz-Canel and published in the Extraordinary Official Gazette No. 27 of November 18th, evisages its application in investigations into “money laundering offences, and financing of terrorism, in defence of national interests”. In the same way, the text indicates it may be employed to “prevent the use of national territory for these ends”.

But in the Cuban context it can be assumed that those affected will be members of the opposition and organisations in civil society. continue reading

Cubalex explains the implications of Executive Order 389/19 for Cuban citizens.

“Electronic, and other types of surveillance” v. the right to privacy and a private life

The Order 389/19 modifies the Law of Penal Procedure and authorises legal investigation agencies to use electronic and other types of surveillance, with the prosecutor’s approval.

They are defined as “use of media whose application enables listening to and recording voices, localising and following around, placing cameras and shooting images, monitoring any type of communications, accessing computerised systems and other technical resources which enable the identification and evidencing of criminal acts”.

An important element of this type of surveillance, which is not mentioned in the Order is that it enables the authorities to monitor a person´s actions without their knowledge or consent.

Tapping into any kind of communications will give the green light to the use of monitoring software (otherwise known as “spyware”) which may be installed in any kind of computer, tablet, or smartphone to secretly monitor its use without the user knowing.

The “spyware” would allow an abuser to have access to everything in the phone, as well as the abillity to intercept calls and listen in to them. Therefore, the authorities could be able to access our social media or email.

How would DL-389/19 affect our tight to privacy and a private life?

According to the United Nations Office Manual on Drugs and Special Investigation Methods, these should be authorised by a competent legal authority, and carried out in the most discrete and confidential manner.

Does the public prosecutor have this jurisdictional authority? Internationally, public prosecutors are not considered to be officials excercising judicial functions. The correct operation of the judicial function requires that those exercising it be independent, objective, and impartial in relation to the matters they deal with.

The impartiality required of the District Attorney’s office derives from the legailty of the tribunals and is independent of either the positions taken by the parties concerned or of the authority charged with instructing or undertaking judgement.

The fact that the Attorney’s office prosecutes the action as the representative of the state and is a part of the penal process makes clear that it is an inappropriate instituition to be given the ability to authorise particular investigation methods.

These methods would be employed by the Attorney prior to the oral hearing, in the absence of any supervision or judicial control. The criminal investigations are  presented  to the judicial entity on the conclusion of the investigative process. This stage may legally be delayed for up to 60 days, a term which may be drawn out by the Attorney without limit as to time.

The total absence of judicial supervision increases the amount of discretion available to the agents of the state during the preparatory stage of the case and permits arbitrariness in the use of those methods, especially in relation to the individual’s privacy and private life, at a time when the strictest caution and discretion should be being exercised.

Nor do we have effective legal appeals. The Law of Legal Proceedings authorises the presentation of complaints to the Investigating Judge in relation to his decisions, or in relation to those of the Prosecutor, which may cause irreperable damage. The appeal is handled by the Attorney, or his superior in the event of the Attorney having authored the decision in question. In the case of the special investigation methods, the Attorney is both judge and jury. Additionally, his decision may not be subject to judicial review.

Therefore, how can we protect ourselves against abusive and arbitrary invasions of our privacy? The absence of judicial supervision and adequate legal appeal  renders illusory the right recognised by Art. 92 of the Constitution: “The State guarantees, in conformity with the law, that the individual may enjoy access to judicial entities with a view to obtaining effective judicial protection of his rights and legitimate interests…”

DL-389/19 does not confer exceptional status on special methods, and also permits them to be employed before the obtaining of the Attorney´s approval, and to be included in the record of the preparatory stage, after having obtained the evidentiary documentation on the alleged crime.

Another aspect open to question is the legitimacy and validity of this executive order, passed by 3.47% of the national deputies “elected” by the “people”. Its adoption violates basic principles of the structure and operation of the domestic legal code. Without doubt, the Council of State is exceeding its remit. It modified laws passed by the National Assembly, a “supposedly” superior body.

DL-389/19: Strengthens the domestic legal code, or increases the discretion of the agents of the government?

“To strengthen the internal penal code, in relation to that which is enacted in international treaties in force in the country”, indicates the Council of State in Executive Order 389 (DL-389/19) to justify its adoption.

Once it ratifies a treaty, the state is obliged to adopt legislative and other measures, to guarantee its application in domestic law. I certainly recognise, although not without some concern, that the state attempts to juggle its  own legislation with its international obligations.

The problem arises on the adoption of a regulation which is incompatible with other obligations derived from other treaties, undertakings and mandatory rules which admit of no conflicting agreements, such as the Universal Declaration of Human Rights (UDHR).

Many people will say that the UDHR does not have binding force because it was adopted by the General Assembly of the United Nations. Nowadays no-one argues against its obligatory nature, and it is widely accepted by the General Assembly and other human rights entities as a model against which to measure countries’ conduct and practices.

The United Nations Office against drugs and crime issued a manual on Special Investigation Methods, in which it sets out certain principles in relation to their use. According to the documents, such methods must be carried out in a way which shows respect for the state constitution, accords, international treaties currently in force, laws, and other regulations.

In conclusion, no oregan of the state may adopt regulations or legal provisions which are incompatible with international obligations. Executive Order 389/19 has the capacity to violate internationally protected human rights, especially the right to privacy and a private life.

It also violates rights recognised in the constitution:

– 48: “Every person has the right to have his privacy and private life respected.”

– 49: “The home is inviolable. No-one may enter another person’s home without the permission of the person living there, other than by express order of the relevent authority, by way of correct legal forms and for reasons already defined by law.”

– 50: “Correspondence and other forms of communication between individuals are inviolable. They may only be intercepted or registered by way of the express order of the relevant authority, in all cases with reference to the formalities established by law. Documents or information obtained  by way of infraction of this principle may not constitute evidence in any proceeding.”

Translated by GH

United Nations Acknowledges Freedom of Speech Crisis in Cuba / Cubalex

A group of Cuban independent journalists and activists all stopped at the airport on the same day in October of this year, and prevented from leaving the country. (Inalkis Rodríguez / La Hora de Cuba)

Cubalex, 10 November 2019 — Cuba and Venezuela  were flagged up by the United Nations as the countries in the region with the worst indicators in regard to promotion and protection of freedom of speech.

For years, both countries have been evidencing a crisis in freedom of speech, according to the UN special rapporteur.

The suppression of independent communicators and political activists has increased in the last year on the island. There have been 54 aggressions against unofficial reporters, 11 of which were women, as reported to th Association for Press Freedom (APLP) as of June 2019. continue reading

As a part of these aggressions, the reporters are intimidated, have their homes observed, their houses broken into, they are confronted in the street, and have their means of work confiscated. They are also arbitrarily detained by state security, normally for hours or days on end.  In late March, the journalist Roberto Quinones was detained, and they took action against him, resulting in his being locked up for a year.

This case was denounced by independent Cuban organisations and media. The  conviction of this Cuban journalist has been included in OneFreePress’s list of the ten most serious cases of injustice against journalists, and Amnesty International named him as “prisoner of conscience.”

On top of all these measures, there is refusal of permission to leave the country for random periods. This year, nearly 200 Cuban citizens have complained of their “regulated” status.

Another coercive measure against free speech is contained in Cuba’s own legal code. Law 88, better known as the “gagging law” threatens decades of imprisonment for those who contravene it.

Law 88 decrees the suppression of private reporting if it tries “to subvert the internal order of the state and destroy its political, economic and social system.” The last time this repressive measure was applied was during the Black Spring in 2003. At that time 75 people were locked up, and nearly a third were reporters.

Last May, the president of the Supreme Popular Tribunal, Ruben Remigio Ferro, reported on his Twitter account that the gagging law remains in force and could be applied again in the country.

First published in Cubalex.

Translated by GH

This Is How Female Journalists Are Suppressed In Cuba / Cubalex

Larisa Diversent, a founder of Cubalex who was forced to leave Cuba under threats to herself and her family. Photo: Tracey Eaton

Cubalex, 1 November 2019 — One day before the 1st of May march in Havana, the reporter from the independent daily 14ymedio, Luz Escobar, was confronted by a State Security official to stop her attending the workers’ procession. The agent of the Cuba political police warned her she could be detained if she went to the Plaza of the Revolution

She had received similar threats the day before a “kiss-in” organised by LGTBI+ groups in support of same-sex marriage, and, on the morning of April 7th, when an animal rights march was organised in the capital.

Luz managed to report both of these events without the threats coming to anything, but in the afternoon of May 8th she was arrested by the national police. From a homeless refuge in Boyeros, where they found her, she was taken in an official car to the military base. Five hours later they let her go. continue reading

Later in that month, on May 22nd, they prevented Escobar from flying to Washington to take part in Independent Art and Journalism workshops, organised by the Cuban Soul Foundation. In the Jose Marti international airport, she was informed by the immigration officials that she couldn’t travel because she was subject to an investigation. As of today they are continuing to prohibit her from leaving.

These attacks on the 14ymedio reporter took place in the context of a wave of repression mounted against the independent press in recent months in Cuba. Up to June 2019, the APLP (Asociacion Pro Libertad de Prensa – Association for Freedom of the Press) has received 54 reports of aggression against independent reporters, 11 of them women. And they have blocked access to three new unofficial press media.

As part of these aggressions, the reporters are intimidated, their houses broken into, their homes kept under observation, they are pestered while walking down the street, and their means of work seized. Another usual harassment tactic in most cases is arbitrary detention for several hours. Although, at the end of March, the Cubanet reporter Roberto Quinones, passed five days in prison in the east of the country, for trying to cover the imprisonment of two pastors who wanted to educated their children at home. Resulting from this detention, today Quinones has completed a year of being locked up accused of resistence and disobedience.

As well as this coercion, they add in prohibitions on leaving the country for random periods of time. At least 196 Cubans have protested against their status as “regulated persons” up to the end of September. This is the category used by the government to limit the mobility of specific individuals after eliminating the white card, or exit visa, in 2013.

The reporters are a group who are most restricted in their movements. In June, for example, the journalists Ileana Colas and Maricel Napoles were not allowed to travel to take part in the General Assembly of the OEA (Organisation of American States). At Havana Airport they were told that they were “regulated persons.” Now, 60% of the reporters subject to these restrictions are women, according to APLP information.

The Cuba Regional Vice President of the SIP (InterAmerican Press Society) Commision for Freedom of the Press and Information, Henry Constantin, in his penultimate report, pointed out that, although it is men who are detained most frequently and for longest, it is the women who are sanctioned  for longest, especially those with children: “Karina Galvez — economic analyst and member of the editorial council of the Convivencia magazine — is serving a sentence of three years for a trumped-up charge, which forbids her to leave her town and requires her to carry out humiliating work in order to not be sent to jail,” states Constantin.

These intimidations of reporters, in the midst of a society which is beginning to get computerised, also happens in the digital sphere. Several independent communicators are victims of different defamatory cyber campaigns. In the month of June, the director of 14ymedio, Yoani Sanchez, denounced hate and misogynous messages from public officials in the social media.

Independent female journalists on the island suffer distinct types of gender-related violence which men are generally not subject to. Female reporters, for example, have denounced sexual harrassment and compulsory stripping and having to squat down in the middle of the interrogations. They have also suffered mistreatment in their homes at the hands of State Security collaborators, with offensive notices stuck on the outside of their houses.

The main threats against them focus on their families, especially their young children. Dismissing their security guard or care arrangements, depriving them of their liberty, are the most frequent.

Adriana Zamora, a journalist with Diario de Cuba, received threats against her life and that of her baby while she was pregnant. Now she is in exile, a decision which at least 7 journalists monitored by Cubalex have been forced to take this year. Another 3 are inactive.

Elderly family members, or those in poor health who are dependent on medical assistance are also on the receiving end of threats. Those who are mothers or carers are vulnerable.

Translated by GH

Is Education Free in Cuba? / Cubalex

Cuban schoolchildren during the ceremony where they take on the red scarf. (14ymedio)

Cubalex, 30 September 2019 — Last April 18th, in the city of Guantanamo, pastors Ramón Rigal  and Ayda Expósito received a citation from the municipal tribunal. On that day they started a summary process against them, which ended up with jail sentences of 2 years, and a year and a half, for “actions against the normal development of a minor”.

The Christian leaders, who belonged to the Iglesia de Dios in Cuba, had decided to provide home education to their children Ruth and Joel, aged 13 and 9 respectively. They adopted “the certified methodology of the Hebron College of Guatemala study plan,” according to the Liga Evangelica.

In the legal action against the pastors, the prosecutor indicated that “home education is not permitted in Cuba, because it has a capitalist basis” and that only teachers have the ability to “inculcate socialist values.” continue reading

For their part, the parents expressed their right to decide what type of education thier children should receive, as laid down by Article 26 of the Universal Declaration of Human Rights. In spite of the fact that the island is signatory to the Declaration, the country is solely able to conceive of state schools providing secular education.

“Numerous religious groups, including the Catholic church, have repeatedly brought up the lack of options in Cuba in respect of primary and secondary education, especially for parents who do not want their children to be educated in an aggressively atheist curriculum, according to Anna-Lee Stangl, Head of the Christian Solidarity Defence Union.

The Cuban state guarantees a free and accessible education, but does not allow parents or legal tutors to choose other programmes for children. Students may not receive a religious or moral education in accord with family beliefs in study centres.

Individuals are not at liberty to run educational institutions or other options which do not provide a secular programme. Education is the sole prerogative of the state, which imposes on parents the duty of educating their children in moral, ethical and civic values in conformity with life in a socialist country.

More than that, the teaching is based on precepts promoting ethical, moral, civic and patriotic values, including military preparation, which is in conflict with the moral and religious convictions  of some social groups.

Translated by GH

Confirmation of Electoral Constituencies / Cubalex

From Cubalex – January 2019 

Step 5

Before calling elections, the Municipal Assemblies of Peoples’ Power (AMPP), divide their areas up into electoral constituencies, on the basis of the number of inhabitants in the Council area, and, after they have constituted them, present a proposal to the Municipal Electoral Commission, which, in turn, submits them to the respective Provincial Electoral Commission for approval.[1] The law does not lay down a time period in which to do this.

Note: This should happen before the Electoral Constituency Commissions are constituted, which, according to the official media, should happen before January 13th, 2019, the date upon which all the national electoral entities should be in place. The logic is that, in order to constitute the Electoral Constituency Commissions, the electoral constituencies should already have been determined. The law is silent on this matter. continue reading

In view of the haste with which this process has been carried out, it must be assumed that the constituencies approved for the previous elections in 2017 and 2018 will be used. At that point, they created 12,515 constituencies throughout the country, and 24,361 electoral colleges. 8% of the electoral colleges were in private houses.[2]

Step 6

The Provincial Electoral Commission decides the proposals for electoral constituencies submitted to them by the Municipal Electoral Commissions.[3]

Note: This should happen before the Electoral Constituency Commissions are constituted, which, according to the official media, should happen before January 13th, 2019. It is estimated that at least 12,515 electoral constituencies will be created across the whole country, based upon the official data on the elections which took place in 2017 and 2018. [4]

Step 7

The Municipal Electoral Commission designates the members of the Electoral Constituency Commissions in the time period established by the Council of State (between the 4th and 13th of January, 2019) in order to establish the subordinate electoral organs.[5]

[1] Article 12 and Subsection b) Article 26 of Law No. 72 of 29th of October 1992, “Electoral Law”.

[2]  http://www.granma.cu/elecciones-en-cuba-2017-2018/2017-07-21/mas-de-20-000-colegios-participaran-en-los-comicios-21-07-2017-00-07-58

[3]  Subsection f) Article 24 of Law  No. 72 of 29th October, 1992, “Electoral Law”.

[4]  http://www.granma.cu/elecciones-en-cuba-2017-2018/2017-07-21/mas-de-20-000-colegios-participaran-en-los-comicios-21-07-2017-00-07-58

[5] Subsection c) Article 16, Article  21, Subsections c) and ch) of Article 26, Article 29 and Subsection ñ) Article 30 of Law No. 72 of 29th October, 1992, “Electoral Law”

Translated by GH