Cubalex Lawyers Give Their Opinion on Decree-Law 35, Recently Approved by Cuba’s Council of State and Council of Ministers

Cuban protesters on 11 July2021.

CUBLEX, 7 August 2021 — On August 17, Decree-Law No. 35 (DL35) was published in the Official Gazette: “On Telecommunications, Information and Communication Technologies, and the Use of the Radioelectric Spectrum” and Resolution 105 “National Action Model for the response to Cybersecurity incidents.”

What are the implications of these new rules? Do they criminalize freedom of expression on the internet?

Cubalex shares the opinions of our legal team on the matter:

Laritza Diversent: The state is appealing to its sovereignty in order to restrict human rights. This new legal regulation irrationally restricts freedom of expression. National sovereignty cannot be used as a legitimate basis to restrict human rights, according to international standards. Therefore, the Cuban State’s argument for publishing this decree is not based on international law.

If they are going to act within “legal frameworks in accordance with universal practice in telecommunications,” as the decree says, the decree is not consistent with the international conventions they have signed, nor with the services associated with this instrument, because the services have nothing to do with the content of the publications that could be punishable by applying DL35.

The State has to hunt for other resources to protect its services without the need of falling into rules that penalize freedom of expression, especially in social networks, which is the objective of this new censoring decree, and now with special interest as a result of the protests of #11J (11 July 2021).

Julio Ferrer: It’s worth asking the Council of State, which has resumed the practice of issuing decree-laws (one after the other and without the National Assembly of People’s Power meeting), whether Decree-Law 370 is still in force. The recently issued Decree-Law 35 makes no reference to it. They’ve returned to the nefarious practice of promulgating and continue reading

approving a large number of legal rules to regulate the same subject matter. They prefer to rule on the basis of decrees.

Alain Espinosa: Sovereignty is not violated or put at risk by the exercise of rights inherent to human beings. That is the first manipulation, then above that I see violations of the International Covenant on Civil and Political Rights, which establishes the causes that can lead to a restriction of rights, and then expressly establishes a group of them that  can never be restricted.

Giselle Morfi: This is the whip of free speech. It is a rule focused on State Security and not on the rights of citizens. The Law of Transparency and Access to Information was foreseen in June 2021 in the Cuban Legal Calendar; instead this regulation comes out and the only thing it does is censor.

In a preliminary or superficial analysis, just reading the introductory titles of the decree, we are faced with a stamp of prior censorship, which establishes limits that are too broad and abstract and that go against all international standards of human rights related to freedom of expression and the right to information.

Regulating false or fake news as a crime is very dangerous. For example, let’s remember what’s happened in China and Venezuela, where without concrete evidence of actual harm and with discretionary limits left to the authority that applies the norm, they can sanction any person for “cyberterrorism,” directly undermining freedom of expression without any legitimacy. Decree-law 370 is nothing compared to Decree-Law 35.

Laritza Diversent: According to Article 2 of Decree-Law 35, any form of publication on social networks from Cuba within the category of “telecommunications” could be sanctioned with this rule. They don’t stipulate which are the specific contraventions except those that are highly dangerous. Aside from sovereignty and this broad framework that covers any publication on social networks, such as Twitter and Facebook mainly, or even in WhatsApp or Telegram groups, this regulation has complementary legislation that already establishes fines.

From now on we watch with concern that one of the consequences is that arguments from Decree-Law 35 offer the possibility for State institutions to restrict human rights, but we are not only talking about freedom of expression, but also the use of technologies, because there are fines for the importation, use, or possession of certain equipment that today would allow people to have greater access to the Internet. And with it to publish and share more information.

That is, there is not only the part that affects my right to express myself, but it goes further: it would limit the use of devices such as antennas, nano and repeaters that allow greater connectivity on the Island and are essential to exercise the right to information and free expression. They will limit people to consuming the few national television channels and official media, which only broadcast political propaganda. They also prevent the economic development of people who want to expand, grow, or exercise self-employment, since the technological restrictions cut the ability to earn income.

Thus, the State would be justified in continue to persecute other types of economic activities that represent a threat to it. We already see how it constantly carries out operations against certain entrepreneurs such as the so-called “coleros”* for example [people who stand in line for others], in times of pandemic, but there are many other examples in the difficult task of survival of the self-employed in Cuba. One of the questions that we have been asked since the publication of this decree is whether it could be applied retroactively to the protesters of July 11. Laws cannot be applied retroactively, it is a principle of law, only criminal laws can be applied retroactively, as long as it is for the benefit of the accused person.

Alain Espinosa: To the question of whether this and other harmful decrees could be deregistered, we must refer to article 108 of the Constitution that establishes the powers and obligations of the National Assembly and among them is:

e) exercise control of constitutionality. (A subject that has a lot of fabric to cut through in our legislation.)

g) To totally or partially revoke decrees, laws, etc., that contradict the Constitution or the laws. (This is the case with Decree-Law 35 because it is in direct contradiction with article 54 that guarantees freedom of expression).

To this we must add that in Cuba there is no judicial control over  constitutionality — no entity having the last word on declarations of constitutionality for each specific case. And today the new currents of constitutionalism suggest that all the powers and organs of the state are obliged, each in its sphere, to exercise control, not only of constitutionality but also of conventionality [i.e., general acceptance], in direct accordance with international human rights treaties.

Julio Ferrer: Yes, the appropriate legal action against Decree-Law 35 is to urge the Assembly not to ratify it and to declare it unconstitutional.

Cubalex has not been able to unravel all 75 pages of the decree, but for the Hotline on Wednesday the 25th, or the one for tomorrow, August 18, we promise a more in-depth analysis.

The entry “Our lawyers give their opinion on Decree-Law 35, recently approved by the Council of State and the Council of Ministers” was first published in Cubalex.

Translated by Tomás A.

"Work is rewarded according to its quality and quantity" / Cuban Law Association

Cuban Law Association, Egar Luis Arozarena Gómez, 10 October 2016 — This article’s title is taken from Art. 45 of our Constitution, which is a clear reflection of the socialist principle “from each according to his ability, to each according to his work.”

For work reasons I visited a production centre, concerned with exporting Cuban products, and I couldn’t help noting that in just one month more than 70 workers went off sick. Why? Low salaries, and union discontent with the payment system introduced by the company management.

How is it possible that there are such problems in a sector like this, which is so important to the economy? Men and women working 12 hour shifts, covered in grease, dust, working outside in sun, rain, heat and cold, not being paid a reasonable salary for what they are doing?

In different speeches and out of the mouth of one of our leaders I have heard the call to the workers to produce more. We have to produce more, because it is the only way to satisfy the basic needs of Cuban society, but I don’t agree with the working class being urged to produce more, without motivating them. I am not talking about paying people who are not producing, but paying people in accordance with the work they are doing, because it is painful to see the conditions in which most of our workers have to work, and the quality of the snacks and lunches they receive.

People like me, who were born and brought up in the countryside and have a family member or friend who cuts cane, operates farm machinery, or who works in the sugar industry, live with these conditions every day and it affects us closely.

It is time to put in place the well-known “inverted pyramid” and pay attention to our “Supreme Law,” as José Martí always wanted,  in the interests of an ever more just Cuban society

Translated by GH

David and Goliath / Cuban Law Association

Cuban Law Association Logo
Cuban Law Association Logo

Cuban Law Association, Attorney Yasmany Orges Lugo, 8 August 2016 — An attorney is someone with an undergraduate degree which allows him or her to practice law in accordance with a country’s legal statutes on behalf of clients. Attorneys are active and indispensable partners in their country’s administration of justice. In other words, an attorney is not just a defender of justice but also someone whose advice serves a preventive role in avoiding social conflict. continue reading

Attorneys in Cuba all receive their university training in the same university system. In theory we can all aspire to the same sorts of jobs and obtain the same skills and knowledge necessary to be good lawyers. But only in theory. This is because every individual is an independent being with different values and levels of intelligence.

Our legal educations and backgrounds also vary. Some of us come from provincial universities while others are from municipal institutions established throughout the country as part of the Ministry of Higher Education’s program of universal access.

There is a big difference between graduates of provincial universities and those of their municipal counterparts. The former are staffed by a higher caliber of instructors. They include individuals with doctorate and master’s degrees as well as instructors with years of teaching experience. They demand a higher level of productivity, have more rigorous academic standards and can provide the resources necessary for research and individual training. Meanwhile, the municipal institutions are somewhat less strict in these regards.

The differences continue after graduation in terms of job choices and locations. Graduates of the major universities find positions in their chosen field of study, fulfilling their social service obligations in the world of law and acquiring greater levels of expertise. Meanwhile, graduates of municipal schools mostly keep their degrees “under the mattress.” They have to rely on personal connections to find jobs where they can apply what they have learned or hope something opens up in a law firm, court, district attorney’s office or legal services firm. The result is a disconnect between the degree and its holder. This raises a classic question: Why did I study law? Looking at it from this angle, one can understand those who say, “These university graduates have had no training.”

My purpose is not to compare one set of individuals to the another. Ultimately, we all go through the fascinating experience of being university students and the title Juris Doctor does not indicate a student’s grade point average or the university from which he or she graduated.

What I would like to draw attention to here are the prejudices and negative comments by some legal professionals against their colleagues, such as those to which I have alluded earlier. I believe what matters is the individual, how dedicated you are to your training, striving to be better every day, researching and growing in spite of the obstacles that present themselves without worrying about who your professors were, what university you attended or what position you have in the judicial system.

This is the Goliath we are dealing with. But believing in one David is enough to give the world an alternate example of grandeur.

We’re Back! / Cuban Law Association

Dear Readers:

After the experience of a webpage, we decided to return to the popular format of a blog. We will have greater visibility here, but above all, from inside Cuba, the page loads better and faster, and the “cascading” format allows readers to read the published posts even when people haven’t been able to connect to the internet for several days.

27 June 2016

#Otro18 Civic Platform Will Hold Forum On Citizenship And Multi-Party Voting / 14ymedio

The logo of the Civic Platform #Otro18 (Another 2018)
The logo of the Civic Platform #Otro18 (Another 2018)

14ymedio, Havana, 10 February 2016 – The group that manages the #Otro18 (Another 2018) Civic Platform has convened its first forum in early March in Cuba, under the slogan Citizenship Revisited, Multi-party Voting. Proposals ranging from reforms to the electoral law to a new law on associations will be presented at the meeting. Participants will include representatives from some 45 independent groups involved in the campaign, according to a statement from its organizers.

Participation in the Forum will be free and international experts on electoral and freedom of association issues have been invited as observers, along with representatives of the diplomatic corps. In the next few days a press conference will be held to define the agenda, date and place of the meeting. Since the Cuban government announced its intention to draft a new electoral law, different political and civil society actors have been encouraging the idea of gathering proposals from the public, with all the diversity and plurality of Cuban society.

Cubalex, an organization of independent lawyers, led the initial technical phase of this campaign in collaboration with lawyers from the Cuban Law Association and other institutions.

Political activists of various organizations such as the Patriotic Union of Cuba (UNPACU), the United Anti-totalitarian Forum, Somos+ (We Are More), Independent and Democratic Cuba, Cuban Solidarity Liberal Party, Liberal Party of Cuba (Azules), and the Center for Support of the Transition and Progressive Arc, as well as independent journalists, and community, civic and human rights activists, along with independent actors, participated in intense days both within and outside of Cuba.

With this event, #Otro18 completes the initial technical part in the first stage of its project, and initiates the policy and strong social and civic advocacy phase, ahead of the proposed reforms to the electoral law and the law of associations.

School Violence and Social and Legal Indiscipline in Cuba / Dayanara Vega, Cuban Law Association

By Dayanara Vega

School violence is considered an intentional act or omission that is hurtful and practiced among members of the educational community (students, professors, parents, entry-level employees) and that is done within the physical space of school facilities and other spaces directly related to the school (areas surrounding the school or places where extracurricular acitivies are carried out).

An extreme and characteristic form of school violence present among students is school bullying.

Scientific studies mark the following as principal risk factors that give rise to school violence in the lives of members of the educational community: continue reading

– Social exclusion or the feeling of being excluded

– The absence of boundaries for proper social behavior

– The constant exposure to violence reflected in social media, which in Cuba is observed in TV serials and certain novels that superficially touch on the theme.

– The integration into gangs that use violence as a form of ordinary behavior.

– The justification of violence in society or in the social atmosphere to which that person belongs.

– Family problems such as violence (divorce, domestic violence)

School bullying can become physical.

School assault (also known as school harassment or by the English term, “bullying”) is any form of psychological, verbal, or physical mistreatment repeatedly practiced among members of the school for a certain amount of time.

Statistically, the dominant form of violence is emotional and is mainly in the class and the courtyard of the school. The protagonists tend to be boys and girls on the verge of entering adolescence (12-13 years), with a slightly higher percentage of girls being the victims.

School bullying is a type of torture, methodical and systematic, in which the agressor abuses the victim often with silence, indifference, or with the complicity of other schoolmates.

This kind of violence is characterized by a repetition that aims to intimidate the victim, implicating an abuse of power exercised by a more powerful aggresor (the strength may be real or perceived). The mistreated subject is left physically and emotionally exposed before his aggresor, generating a series of psychological consequences (although these do not form part of the diagnosis); it is common for the victim to be afraid to attend school and to demonstrate nervousness, sadness, or loneliness in his or her daily life. In some cases, the difficulty of the situation can give rise to suicidal thoughts and their materialization, as consequences of harassment.

In our country we customarily blame external sources for social indiscipline and do not look within ourselves to see how we have lost values that are at the core of the family; the fundamental unit of society.

The state does not take responsibility since the Geneva Convention exists to protect youth and adolescents and Cuba forms a part of it yet does not enact real judicial actions whose aim is to put the brakes on this social evil.

Translated by: Bianca Martinez

7 July 2014

At Any Price / Wilfredo Vallin Almeida, Cuban Law Association

José Triana
José Triana

Wilfredo Vallín Almeida — On various occasions, I have seen a video depicting a meeting between economist Jose Triana from the Center for Studies of the Cuban Economy and officials from the Interior Ministry.

In the video, Triana explains his point of view regarding the necessity of certain changes that, in his opinion, are indispensable to the country’s ruling political system.

In particular, I liked the material that recognizes and tries to explain the imperative necessity of such transformations.  Speaking with others, I have received without a doubt, different assessments of this material: some approve of it, others are critical of it, another third say it is nothing but “more of the same.”

Diverse opinions aside, I believe that, as it relates to an economist, there is something fundamental missing in the explanation which Mr. Triana, in my opinion, does not very successfully avoid, which is none other than the famous and trite cost-benefit analysis to which this important discipline has so often returned since the time of Smith and Richard.

At one moment of his intervention, the speaker says almost literally that the important thing is, despite the errors that may have been committed, (which is to say, without considering the cost), we are here and we will stay here and that is what is important.

Independent of the ways these words can be read, my interpretation is as follows: I agree, there has been a high cost (on occasions exceptionally high because we are talking about the unrepeatable lives of millions of people)… but what has been the benefit for the same millions of people that have paid such a cost?

If the benefit can be calculated obviously in the loss of societal values, in the ruin of our cities, in the demolition of the Cuban sugar industry, in the mass exodus of its citizens, especially the young, in the fraud in educational institutions, in the detention and indictment of judges, prosecutors and lawyers and countless others, of what benefit can we speak?

Who are we apart from the remorse, and should we be content with the way it is?

And, in the case that it was that way, what is very clear is that not everyone is prepared to pay indefinitely some benefit, as satisfactory as this may be…at any price.

Translated by: D. Andrews

23 June 2014

Travel Insurance is not a Trustworthy Contract / Edilio Hernandez Herrera, Cuban Law Association

Lic. Edilio Hernández Herrera

A few years ago, some friends encouraged me to taik about travel insurance for tourists coming to Cuba. What they cover, how the guarantee limits work, legal quality and certainty, which provisions are legally and objectively reclaimable.

This subject arose in relation to a retired gentleman, who was ill and as his family in New Jersey were unable to look after him properly for reasons of employment, they arranged things with family members in our country; retired people and student grand-daughter included, in order to make his treatment more effective and human, so that he could recover. They paid his very expensive insurance and additional costs for his stay in Cuba for a period of six months.

He began to run short of medicines, reagents, and vehicles to transport him about, etc. I don’t want to go into detail, to safeguard the family’s privacy. But the bottom line is: the sentimental grandfather left before three months was up. continue reading

After such a long time, I was asked to take on this work, because recently I went with a friend to the Cira García hospital for foreigners, whose services, drugs and other tests are paid for in Cuban Convertible Pesos (CUC). In the said location we inquired about the phantasmal travel insurance cover  in order to receive some service and, to our surprise, in spite of the fact that before coming to Cuba the insurance contracts between the overseas agency and Asistur Cubana were signed, it was not possible to look into anything here, not directly with the company, but you had to call the country of origin to deal with the inquiries. I was astonished, after querying with them about the cost and loss of time calling abroad when the Cuban company is in Cuba, and I received the reply which you can imagine.

With some experience in commercial contracts, I started to inquire if Asistur had in fact any agreement with the Cira García hospital to hande any medical insurance contract. You can again imagine the result.

Among the more significant factors in the poor legal security of contracts in Cuba is the monopolistic working of almost all the provisions which give rise to or trigger payments; contracts are generally unalterable and may not be queried, any ruling to do with valuation in provisions, which are slanted in favour of the party offering the contract, are dismissive and coercive; since there is no competition, you can take it or leave it. Moreover, although the parameters may appear fair in terms of guarantee, quality, processes to sort out problems reasonably and legally, they are never, in their absence in practice, inclined in favour of the client.

The backward and out-of-date character of the legal system in our country is much more serious than many people may think.

Translated by GH

9 June 2014

Another Unfulfilled Promise / Cuban Law Association, Dayanara Vega


The National Assembly of People’s Power quickly passed the economic regulations recently proposed by the Cuban Communist Party Congress and public opinion in the country is mixed. Some believe the economy now will be put back on track while others believe this will be “just one more of the many unfulfilled promises the party has made.”

Among the new regulations was the expansion of self-employment options along with their related tax schedules. Forgotten once again, however, were guarantees that would have allowed self-employed workers to keep all the income that their business skills and personal efforts generated based on the activities carried out and the services or products offered to the public for purchase.

We are talking about the the self-employed workers, who cannot buy anything wholesale. Their only option is to turn to the retail market or, even worse, the underground or black market to find the necessary raw materials. The latter constitutes an illegal activity because merchandise sold there has been stolen from the state’s food service industry, retail outlets or other businesses. This means the product or service is expensive because the cost of production goes up, sometimes exorbitantly.

2 June 2014

Just One Account / Josue, Rojas Marin, Cuban Law Association

I live in a community with more than sixty buildings. Behind them, as is the case with my home, many residents—at the request of the government itself—began planting fruit trees and banana plants. When the marathon of demolishing everything began, I decided to make an estimate of the economic losses that were indiscriminately carried out by people who came from other cities to destroy what had been so passionately harvested for more than a decade.

Josué Rojas Marín

To give you an idea, there were about 300 banana plants when demolition started, some 50 new bunches were uprooted and another 130 were cut and thrown in a corner of the building, their remnants remaining there since July 2012. In that same time frame, 50 or 60 bunches had been collected monthly, which means about 660 per year, or about 16,500 pounds that were contributed to urban consumption and that represent about 9,900 pesos taken from the pockets of those citizens to whom no one came to meet their needs.What is more aggravating is that when the Director of Physical Planning visited the town and I gave him that assessment, he told me that it didn’t matter, that many residents reported that they now had more open space. I responded that people can’t live on open space, but they can live on food. He shut up and couldn’t get out of there fast enough.

Translated by Tomás A.

4 April 2014

Something That Goes Beyond the Law / Josue Rojas Marin, Cuban Law Association

Atty. Josue Rojas Marin

Some landlords from Santa Lucia beach in the Camaguey province find themselves confused before a measure imposed by officials from Immigration and Aliens. Since last year, they have made them sign a document obliging them to be responsible for the cars rented by tourist staying in their homes, in spite of the fact that they sign a rental contract with the agency.  As is logical, there is nothing in the law that imposes a responsibility for property that forms no part of the accommodation.

They also have to keep the home’s door wide open, as we say in good Cuban, in order not to obstruct a surprise inspection, abrogating to the inspectors the right to write or cross things out in the rental registry book, in spite of the fact that it is not they but the Municipal Housing Department that is responsible for controlling this document, so it is required that a responsible person not leave the dwelling unattended, even when there are no guests.

The landlords often suffer unexpected visits by police agents who also write in the registry books, conduct illegal searches, take the registry book without any legal process and return it whenever they want.

All that affects the rental activity and consequently their income.

Translated by mlk.
31 March 2014

Yearning for a Dream / Eliocer Cutino Rodriguez, Cuban Law Association

Eliocer Cutiño Rodríguez

Some time ago, as I began to write a text about my country, I surprised myself with this thought: “… it seems as though a change toward participatory democracy is becoming reality.” That was my inspiration which turned into my written words, but before finishing the text, a friend whom I asked to critique my writing suggested I should eliminate that idea. It was a notorious moment. Although the concept was never devoid of free will, at some point I wanted to convey a very distant but not outlandish hope.  Revisiting after seeing the activities for the 55th anniversary of the Triumph of the Revolution and hearing the speech of the President of the Council of State and Ministers, it is nonsense.

Perhaps the signs that provide guidance to the analysts or the media are not the same that take into account the Cuban people. continue reading

In the brief horizon of my country fit the many stories and accountable actors, sins of deed and omission, events as much as processes. But no factor is more impactful as the deterioration of the political system, increasingly less able to represent the national interests, build consensus and make decisions within a reasonable time to be implemented.

A country that each day becomes more ungovernable, even though all the year end data and statistics continue to be the “best” of Latin America, though the trend is worse and ominous.

The growing dissatisfaction of the Cuban people is real. If the government was never good at completing things now it is not even able to start them. The constant creation of experiments is an example of its mediocrity.

Creative politics that stopped being rational with the collapse of socialism in Europe.  The government allows small tactical victories for certain groups at the expense of a colossal strategic defeat for society.

The status quo of our political system is no longer tenable and hurts us all, though many may not realize it yet. It is time to reexamine from its foundation, so we do not leave as inheritance to the next generation this longing for the dream of a developed country, with all and for the good of all.

Translated by: Yoly from Oly

21 March 2014

Who’s Fault Is It? / Alexis Piloto Cabrero, Cuban Law Association

Lawyer Alexis Piloto Cabrero

Juan Miguel Hernández Basulto, Camagüey, was expecting a package sent to his wife from Italy through Globestar agency operated in Havana by Cuban officials enjoying the total confidence of the State for this type of business. Hernandez Basulto was discontented when he received the package. The package was for his daughter’s quinceañera, and it was damaged and stolen before he received it. It hurts more when no one appears to be responsible. He told me that he wanted to make a formal claim for damages, but did not know what was the next step.

When communicating with the Globestar representative in Cuba, Mrs. Martha, she told him that she would take care of the problem. But instead she never gave him an answer to his problem. Will Juan Miguel then demanded from Saverio Cicaroni, the owner of the business in Rome, to explain where the gold articles, footwear, and other contents are, valued more than € 520.

Translated by E.C and A.I

12 March 2014

Capitalist Reminiscence? / Cuban Law Association, Wilfredo Vallin Almeida

Wilfredo Vallin Almeida

Many events throughout our existence can be forgotten, but others leave a deep memory that does not go away. And these events may have had many demonstrations as they can be taken for granted, a dream, an omission, a sentence, and even a poster.

With the latter two, much relegated to memory, I was suddenly assaulted when I least expected it: while watching a video that a friend had sent me.

The video in question relates to an investigation and several arrests made by the Technical Investigation Department (DTI) of the National Revolutionary Police. The detainees are involved in fraudulent transactions whose amount is a whopping 33 million pesos.

The poster that comes to mind at the moment is one I saw I don’t know how many times over many years. It was a big fence on a broad avenue and on a white background highlighted in red:

The future belongs entirely to socialism. 

It’s a sign that I no longer see, but it was present during the youth of Cubans of the generation of the ’60s, ’70s and ’80s, when it was assumed that the “moribund capitalism” was terminal and that, who could doubt it?, socialism would be victorious.

The other phrase, I also was reminded of by the sign is:

Crime is reminiscence of capitalist society and will disappear to the extent that socialism advances.

I read that phrase many times in textbooks of law and Marxist texts that college students had to study and examine mandatory.

Watching this film, which ends with the words of General President Raul Castro admits theft where in the country is huge, at all levels and at all levels, and as, moreover, I see it now flourishing and vigorous than ever before in the history of Cuba, I then subtracted one question:

What happened to the “capitalist reminiscence”?

10 February 2014