Category: Cuban Law Association

In Truth / Cuban Law Association, Wilfredo Vallin Almeida

For a moment I thought it would pass without incident, that the funeral procession would arrive without mishap to the Columbus Cemetery and the remains of the winner of the Sakharov Prize for Human Rights, Oswaldo Paya Sardinas, would be laid to rest in peace.

From my place in the long line of vehicles, perhaps because we had 16 or 17in the column, we noticed that something happened at the head of the line, which stopped without those in the back knowing exactly happened. Several minutes later the march was resumed.

Upon arriving at the cemetery and realizing the absence of Antonio Rodiles, director of Estado de SATS and friends traveling with him, I inquired about them. So I knew what had happened: a great fight in Calzada del Cerro, with the violent intervention of the police with fists and truncheons, and the arrest of about fifty people, all opponents of the regime, and put in a bus belonging to the Armed Forces, that just happened to be there, they were taken to police unit Tarara.

Once back in my house, I prepared to go in search of the missing, when Antonio’s mother called and told me that, apparently, he and other friends were detained at the Fourth Police Station at Infanta and Manglar in neighborhood of Cerro. I told them I would meet her and her husband, already there.

Again we started to run up against those who say the country’s laws, the members of the Department of State Security.

On reaching the station of the People’s Revolutionary Police (PNR), no one outside yet knew what was going on. I decided to find out if Antonio and other friends were really there. I talked to the duty officer, with a rank of Major. He looked for a paper he had and told me THESE PEOPLE ARE NOT ON THE LIST OF THOSE DETAINED.

I then told him they could have been brought to this police station by State Security Agents. He made a call. After hanging up he confirmed to me that yes, they were detained there.

The reasons why the political police had brought many of the arrested to the national police stations instead of taking them to one of their own facilities, are not very obvious, although there are many versions. What is clear to us is that Article 244 of the Criminal Procedure Act provides:

Upon the arrest of any person a written report to record the time, date and reason for detention as well as any other particular of interest shall be prepared. The report will be signed by those acting and the detainee.

When, about ten o’clock at night, the independent journalist Julio Aleaga was released, we learned they never filled out an Act of Detention. Nor was this done with Ailer González Mena or many other detainees.

When they did it, in the morning for Antonio Rodiles, the Act of Detention tried to justify the arrest as “in the interest of CI” (Counterintelligence).

I could be wrong, but I think this latter was due to our having already pointed out to the PNR and State Security officials with whom we spoke precisely about the absence of such Acts, making the arrests illegal and saying that the detainees should be released immediately.

From the beginning there were two things that were obvious to all of us citizens who met in front of the police station in solidarity with the detainees:

1) That the PNR of that station was not very pleased with what happened there. The treatment of its officers toward us was measured, correct, without being overbearing, never disrespectful and tried all the time to find a solutions that was, as far as possible, without violence and in a negotiating framework.

We can not say the same for the State Security agents involved.

2) The level at which decisions were made regarding what happened there was always elsewhere, much higher, and where the regulations established in a simple little article of the Criminal Procedure Act do not seem to have, in truth, any relevance.

August 24 2012

Client-User Defenselessness / Cuban Law Association, Lic. E. Javier Hernandez H.

Lic. E. Javier Hernández H.

For years there has been a reality in our country that isn’t exposed nor analyzed from all angles as the suffering of citizens deserves to be: it pertains to the defenseless state of Cuban client-user-buyer-consumer-constituents in the face of administrative and governmental requests, particularly when the parameters of quality, efficient operation, or the most basic rights are not fulfilled or respected.

We are observing in a majority of cases that come to our Association, in addition to our becoming a last resort or “lifesaving plank in the vast sea”; we can see inefficiency, laziness and insensitivity. The fundamental causes of our compatriots’ troubles are also the errors or violations committed toward them by entities and officials with impunity, sheltered by the lack of culture and discipline that would allow administrative and judicial proceedings to be correctly appealed and directed for the sake of restoring violated rights.

The ultimate tendency of the Organs of State Administration, as well as their subordinates, is the refusal to respond, be it a quality parameter claim, a complaint, a violation of rights or a breach of contract with the main service providers, be it the Electric Company, ETECSA (mobile phone and landlines), Aguas de la Habana (the water company), Immigration, Customs, among others. Examples abound as water service days are skipped, telephones break or are suspended without compensation, decisions delay or prohibit exit from and entry to the country, and seizures occur at officials’ discretion or interpretation without legal basis; in the end, the common Cuban’s defenseless situations are endless.

The country’s top leaders are carrying out an offensive against corruption—an evil that is difficult to avoid, especially in a country of fundamental weaknesses, as much present in the Basic Food Basket as in other individual liberties—a very valid offensive, since with egalitarianism, paternalism and decontrol, it is nearly impossible to move forward and plan with what little we have; however, as always, we observe how far removed this is from the citizens’ own “offensive.”

Why is it so difficult for the Comptroller to review the Municipal Housing Agencies, where records of exchanges or expropriations get lost?

Why don’t the supervisors of Justice reach the Municipal and Provincial Courts, where they almost always don’t know or don’t want to properly prosecute citizens’ administrative, labor and civil cases against those monopolistic businesses that frequently operate with impunity and contract abuse?

When will the those charged with applying the law of our country’s People’s Courts of Justice recognize their latent responsibility to use their wisdom to support a true equilibrium, between arrogance, impunity, mediocrity, and insensitivity of those “officials” and the defenseless citizens?

When should these same professionals turn to a concept as a guide in their precincts… “to challenge dominant, powerful forces within and beyond the social and national scope…” or also… “defend the values we believe in, at any cost…”

Or also, why not, to feel that our profession has been a marker and an honor in the history of democratic and just society, in the brilliance of public servants like Lincoln, Jefferson, Montesquieu, Agramonte, Céspedes, and Martí.

There is still time to participate judiciously in a new society, where we will lack neither compensation, retribution, certification, nor justice in the shadow of whatever power.

Translated by: Courtney Finkel

August 25 2012

Utopia or Reality? / Cuban Law Association, Rodrigo Chavez Rodriguez

By: Lic. Rodrigo Chávez Rodríguez

You don’t have to be skilled in economics to notice the gaps that instability in all spheres brings with it; every time you wake up it’s a holding pattern and we imagine we are dreaming, even if it’s the afternoon. To go to a market, a store, always generates an interaction between the clients and a representative of the State. In all or almost all establishment there is a “suggestion box” which is never honored because you only have to look inside to see that it’s empty, not because there are no complaints or suggestions, but because of the work and art of whoever is in charge of that entity.

As a general rule the complaints fall on deaf ears and as a general rule to demand, “as it’s established” means “deaf ears,” then how to demand our rights, which they say are protected by law, a Law that still lives in time and space, not respected.

I always remember Benito Juarez — a man from Oaxaca who served five terms as president of Mexico — who said, “Respect for the rights of others is peace,” and peace and respect is what we Cubans deserve. I just think about this, it would be a utopia for us.

It’s painful the way they mistreat us and trample our Constitutional rights, their “deaf ears,” man lives not by bread alone, the lack of shame and decorum, and when on occasion we are treated well, it’s rigged from behind, the disrespect for our rights, the right to receive a return for a purchase or service received, the right to not only address the complaints, which as a general rule point out deficiencies or difficulties, they always count on the blessing of those who must face them.

The National Assembly of People’s Power was in session last week, it is worrying that such timely topics were not discussed. Assuming that the guideline of the Party were discussed by all the people, and they collected the complaints and suggestions made, these rights would undoubtedly be a concern for the leadership, there has been talk of shortages in commerce, but nothing has been said of the causes which arise: how long have we been listening to rhetorical speeches, unconvincing and with no resolution, and how much longer do we have to wait?

Another question that caught my attention was the speech of Vice President Marino Murillo, when he suggested that “the 2011 plan will be liquidated,” how it’s possible that “there’s money left or it wasn’t used” when the correct thing would have been to use it all in alleviating the needs of our people. On what objective basis was this year’s budget established? What were the reasons why the money wasn’t used? Who is ultimately responsible? Who do they answer to? How can it be made public? It is our right or not? Is it a utopia or a reality?

What the enemy has heard is just the voice of attack. José Martí

August 21 2012

Disgraceful / Cuban Law Association – Veizánt Boloy

by Veizánt Boloy

The laws are used by some citizens today like waste paper. If we take as an example the acts of repudiation — where citizens gather and scream at and even physically attack their fellow citizens or their homes — surely they would change their minds. To those who by Law are allowed to engage in this type of act.

If we describe the acts that are undertaken and that enjoy immunity, we don’t think about murder, manslaughter or robbery, because these are addressed in our Cuban Penal Code. We refer to violations and crimes that emerge from these illicit acts.

These acts of repudiation are an illegal act and to maintain a permissive attitude towards them is intentional. The act of repudiation could entail multiple crimes, such as public disorder, injury, threats, violation of the home; all with a high social danger.

According to the text of the Constitution we are all obligated to remain in strict compliance with the law. Of course, if would be utopian and excessively confident to let the Governing Council of the People’s Supreme Court resolve this problem as long as it is not independent of the Executive Power.

If, indeed, in their role to administer justice and to ensure compliance with the law, the courts and prosecutors are those who allow these illicit and immoral actions to arise, and thus they confirm the suspicion of many that “the country is ungovernable.” With contempt for the law we ask a question: What is a country without laws?

The Organs of State Security belong to the Ministry of the Interior, which acts without impunity, sparing no expense. What happens is considered “collateral damage,” and in this way any injuries are justified.

The Cuban Penal Code in its first article defines as one of its objectives to contribute to developing in all citizens the conscience of respect for the law, of doing one’s duties, and of correctly observing the norms of coexistence.

In our criminal legislation there is no specific article that criminalizes this reprehensible act and hence the degrading acts against “the most dangerous for the Country,” are without an doubt the work of many in a country located on Mars.

As a starting point, we must internalize how difficult it is to create a true nation, with respect for the others, and forgetting all that visceral hatred for those who think differently. However, despite all the force of the government, every day the number of people who want change, but who out of fear don’t demand it, is growing.

August 18 2012

A Message for Brayan / Cuban Law Association, Wilfredo Vallín Almeida

by Wilfredo Vallín Almeida

He had a look of concern on his face as he spoke to me. He was a neighbor who came to warn me. According to his account someone from the police, who identified himself as Agent Brayan from the Department of Technical Investigations (DTI), had been to his house to ask for his help. He wanted to place a listening device near my home.

I did not know whether to be be annoyed or amused. After thinking about it a bit, I remembered another Brayan – the agent from State Security who “chatted” with me during my detention on April 13. At least that is how he identified himself. They never use their real names.

As I am almost certain we are talking about the same person (and if not, it does not really matter), I would like to send a message to my interlocutor from that day about the issue that my neighbor brought to my attention.

Brayan, what you might hear in my house is the same thing I told you the day of our “interview,” which I will reiterate now: Among the people most in violation and ignorant of the laws of Cuba are those of you who act as though legality had nothing to do with legal procedures. Examples of this abound.

I am quite convinced of this. It is a secret to no one — not to the general populace, not to the attorneys, not to the country’s highest authorities.

I will say what I think, with or without microphones, so there is no need to trouble yourself. I do not know if you are ignoring what the Maestro said: Only truth can wrap us in a manly gown.

The most annoying thing is that this has the atmosphere of a movie thriller, of illegality, of plots against the state, as some of you would like to claim.

It is common knowledge that, on numerous occasions, the domestic opposition has invited you to participate in its dialog, yet you always refuse. Clearly, if you accepted, the climate of conspiracy that you prefer to see would fall by the wayside, and you would not be able to invent scenarios that required punishment by “trial” like that carried out against Dr. Darsi Ferrer some time ago.

Young Brayan, you seem to ignore the fact that, when your superiors provide some information to be pursued about the “enemies of the revolution,” they are communicating this only to discredit them. If there is something positive to say about such people, you will not be informed.

When this young man “spoke” to me, he pretended he was doing as he was told, although his actions (since he did nothing else but act) reminded me of those lines from The Prophet Speaks by Luis Aguilar León:

Cubans do not need to read, they know it all. They do not need to travel, they have seen it all.

Previously, I suggested you see the German film, The Lives of Others, from which you might learn something useful about all this… and your job.

I would like to make another suggestion. It involves reading a very good book by Leonardo Padura, The Man Who Loved Dogs. You might see in one of the protagonists of this literary work what you could become, if you do not react in time — your possible future self-portrait.

August 13 2012

The Universal Declaration of Human Rights: Dream and Reality / Cuban Law Association, Argelio M. Guerra

 

By Lic. Argelio M. Guerra

The year was 1945 and with its progressed, the end of a bloody global War, to the satisfaction of the international community. The effects of the global conflagration left the eyes of humanity perplexed and revealed the urgent need for a mechanism to control and guarantee peaceful coexistence and international security. Thus, gathered in the city of San Francisco in June 1945, representatives of the allied powers and other states agreed to the charter of a new international organization: The United Nations Charter.

One of the first tasks tackled by the new organization was precisely the wording of a declaration that would explicitly reference the human rights expressed in the Charter, so that only three years after the adoption of the Charter of United Nations, the Universal Declaration of Human Rights was born, adopted by the General Assembly on December 10, 1948.

In its thirty articles, the Declaration addresses the basic human rights and fundamental freedoms of all people, everywhere, without discrimination. The Universal Declaration was proclaimed the “dream” of a common standard of realization for all peoples and all nations, but the fact is that the discrepancies of States in the process of drafting the Declaration and the reluctance of them to be legally committed, provoked a turning point that led to the Universal Declaration being born and adopted in the form of a mere resolution of the General Assembly of the United Nations devoid of a legally binding character on its member States, postponed for a future development of a human rights treaty, legally binding on those States that came to ratify it.

Nevertheless, this reality is not an impairment to the authority and force of the Universal Declaration of Human Rights as general guidance on the content of the rights and fundamental freedoms that are frequently referenced in national constitutions, judicial decisions and also in international instruments, in addition to which, over time, the Universal Declaration of Human Rights has become one of the basic parameters under which the international community can deny legitimacy to certain states, frequent violators of these rights.

August 12 2012

The Preliminary Provisions: A Bad Beginning / Cuban Law Association, Wilfredo Vallín Almeida


By Wilfredo Vallín Almeida

In the Cuban Penal Code, in Title 1, Preliminary Disposisions, Article 1.1, we read:

This Code has as its objectives:

– to protect society, persons, the social, economic and political order and the State system;

– to safeguard the property recognized in the Constitutions and its laws;

– to promote the full observance of the rights and duties and citizens;

– to contribute to forming in all citizens the consciousness of respect for the socialist legality, of the performance of the duties and the proper observance of the norms of socialist coexistence.

Let’s try to analyze, albeit briefly, the objectives that the current penal code establishes, starting with the first: to protect society, persons, the social, economic and political order and the State system.

This first objective begins, to protect society, persons … in that order. That is, the first is the society, only then the people. Allow us, however, a brief tour of History.

The individual, the person, is first that which arises from the civitas which is nothing more than a creation of man. All who have dealt with the appearance of man on earth agree that homo sapiens predates the creation of society.

Moreover, this formulation reminds me of that controversial and much-quoted French philosopher, Jean Jacques Rousseau, who through his formulation of what he called the general will, many saw the intention of disregarding anyone who thinks differently or disagrees, or belongs to a minority, or deviates from majority behavior …  which can be achieved in many ways.

In other words, since it is easy to argue that the rights of all come first over those of a few, the reduction of those few, with controversial arguments or not (or with force) can be easily justified, especially if what comes next is … (to protect) the social, economic and political order and the state system.

This formulations should not surprise us at all because Vladimir Ilyich Ulyanov had already left us with “the law is nothing more than the concentrated expression of politics” and the expression of the penal code under consideration shows us exactly that.

It is interesting to contrast this article with the same title and section of another code, for example, that of our Latin American sister republic of Colombia. It reads:

Title I, Article I: Human Dignity. “Criminal law will base the respect for human dignity.”

And if what this is about is the importance of our having the rights and individual freedoms endorsed by the UN Covenants on Human Rights, then the Preliminary Provisions of the Penal code are — in terms of rights and freedoms and in my opinion — a bad start.

August 9 2012

The Collapse / Cuban Law Association – Veizant Boloy

Veizant Boloy

Across the country, inhabited homes continue to collapse. The housing deficit and the bad conditions of housing in Cuba can be cataloged as a “chronicle of an announced collapse,” something inevitable because of the progressive deterioration of the constructions on the island.

There is no research process undertaken to investigate what is responsible for the collapses, much less a subsequent compensation to those injured. The performance of the search and rescue brigades is the only thing that improves, their catalog of irresponsibility of the residents or victims.

The parliamentarians in their last regular session did not prioritize a discussion of the topic.

In these times of cholera, Cuba is at the center of the hurricane and the edge of the sword before the world. The opinions about those who hold the reins of government are expressed. The guilty in the shade are those who lead and let it happen, and if this is so how blind are these minds.

The institutions behave impiously and the populace pays with its blood and its lives the price of being captive. It is alarming, those who are sheltered under the grim shadow of a system in ruins.

It’s obvious, half a century of delay in Decree Law 288, issued by the State Council, at the end of last year. The legal statute authorized and buying and selling of real estate, but it is still impossible. The poor Cuban people, with a salary of roughly $15 U.S. a month, cannot aspire to even a modest apartment.

The government recently gave birth to private subsidies through bank loans but over 50% of the requests are rejected. On the other hand, the speculation in and hoarding of construction materials have made it “mission impossible” to acquire the materials legally, as demand grows in sync with their disappearance.

According to Gladys Bejerano, Controller General of the Republic, stressed in the VII National Audit, the new guidance on self-regulation would be applied in the Construction sector; specifically with regards to the sale of materials and to the awarding bank loans and subsidies to individuals.

More can be done, over-population is an important factor to be taken into account in the marginalization. Cuba in general is flat, with large tracts of land unused in agriculture or housing construction. Several generations live in the same house.

A Christian friend sees this from a positive viewpoint: It’s good to keep the family together.

August 6 2012

Ailer / Cuban Law Association

Ailer at Estado de Sats

I met Ailer recently and we quickly became friends. I appreciated her vocation in the scenic arts, a sphere so difficult and one she operates in with great ease. She traveled to Germany with a theater group for this work. I was happy for her.

But this wasn’t the only reason for my sympathy. Ailer also was, and is, an important collaborator in Estado de Sats, where I’ve known her, seen her, and where she serves in various duties.

She wants, like the immense majority of we Cubans, for things to change for the better in the country, that all of the political, economic and civil rights will again be a collective and individual prerogative.

Ailer had the courage and the dignity to attend a farewell tribute that a large group of compatriots held very recently for Oswaldo Payá Sardiñas. Practically in the presence of the coffin, she was enveloped in brawl, created artificially so as to ensure that the farewell was not peaceful.

And Ailer was put on a bus which, according to her, seemed like it was about to turn over at any minute because the brawl continued inside the vehicle, almost until they reached the Playa Tarará area on the outskirts of the city, where they got off at a Ministry of the Interior police station.

Lic. Esperanza Rodríguez Bernal

Ailer was humiliated, beaten, lying on the floor. She, hours later, would relate all this with ill-concealed anger the to chief colonel of the Fourth Unit of the National Revolutionary Police (PNR) at Infanta and Mangrove, in the Cerro neighborhood, where she joined the large group gathered to clarify the status of Antonio Rodiles from the Estado de Sats project. The colonel listened and eyewitnesses say that what could be seen on his face was … consternation.

Now, in addition, I admire Ailer for her bravery, her civic sense, and the decision to demand her rights, which are those of all of us.

August 3 2012

Concepts: Criminal Code / Cuban Law Association – Wilfredo Valln Almeida

Wilfredo Vallín Almeida

As our readers know, educating the national population on legal issues is one of the projects of the Cuban Law Association.

Given the importance of the issue, and the need for it, we intend to keep working in this direction from this space, to assist with this preparation so needed by everyone.

So, we will begin with Question-and-Answer: What is a Criminal Code?

Normally a Criminal Code is a compilation of those human behaviors considered detrimental to social harmony and which are, therefore, punishable due to their damage to the established order and peaceful and organized relations that must exist in any human community.

When a human act (or inaction) or actor is damaging in relation to other people in society it is defined as harmful by the State, and so it is considered and defined as a “crime” and comes to occupy a place in the conduct we refer to in the previous paragraph.

Each and every one of these human behaviors, now conceived as crimes, are enunciated, condemned and reflected in writing in the articles of the Criminal Code in question, so that individual behavior can be collated with a description in a prohibitive Article, and coinciding with that it is the understood that such conduct is a crime.

If the behavior of subject X does not coincide very closely with the provisions of the collated Article, no crime would exist…

So, in summary, the criminal code is nothing more than a compilation of those behaviors prohibited by the State (although it also includes other aspects relating to the adjudication and imparting of criminal justice).

The non-observance of its provisions will entail punishment in the form of penalties imposed by the established state apparatus (the judicial system).

The Cuban Penal Code, begins its presentation with some Preliminary Provisions which are the objectives of the code in force in our country, which I will discuss in detail in future work.

July 22 2012

Double Immunity / Cuban Law Association, E. Javier Hernández H.

By Atty. E. Javier Hernández H.

Validating the principle of “bad economic base, bad superstructure,” parallel to the inefficient economic management, the functioning of the State organs of administration is also flawed at all levels, flawed and ineffective.

For years a vicious circle has been created in the occupation of key positions to manage the economy and other sectors of society, for individuals with the gifts of “reliability,” not talent, so that when they finished their duties they transferred to another agency, taking with them mediocrity, immobility and inability.

But there is something worse in the functionaries, that damages and create prejudices; it is the impunity of their fault, as there is no legal and moral will to make those mid-level and high officials pay for their bad decisions, bad solutions, worst omissions. It is most humiliating in a State that proclaims rights and equality to see people dodging and avoiding the weight of law and justice, which are well defined and regulated in all procedures for the law, including the courts, which apparently treat senior cadres and leaders of the State or their families differently.

In Cuba there are Decrees-Laws 196 and 197 since 1999 (they state the Cuban legal standard for how, when and why, and not the bosses), as amended by a few articles in Decree-Law No. 251 of August 1, 2007, essentially adding administrative discipline violations having to do with the alleged ambiguity of the decree, when it included the responsibility of leaders and officials for negligence, inaction, prevention; that is, the so-called “collateral” responsibility for the acts of their subordinates.

There is also Article 26 of the Constitution of the Republic of Cuba, “… Any person who suffers damages or prejudices unjustly caused by functionaries or agents of the State with the motive to exercise the proper duties of his charges, has the right to claim and obtain the corresponding indemnification as prescribed by law …”

In most cases, these characters have double responsibility, and double immunity, which translates for almost all into double passivity, double immobility, double servitude, to ensure a corresponding double privilege, although Article 82 of the Constitution states …. The status of deputy does not entail personal privileges or economic benefits.

Now, what happens in practice? Because the famous “collateral measures” always work at the level of directors of businesses, or leaders and functionaries of the Establishments or Organizational Units of the Base, what’s more they reach municipal directors.

In the recent cases of corruption in the country, both political and economic, the most renowned, from the General Acevedo, foreign firms, Ministers, Deputy Ministers, passing through the recognized failures of the Communist Congresses, we might ask … when will blame the “collaterals from above,” who are the chiefs of those chiefs to remove or punish them.

But unfortunately I also remember the in Cuban Constitution itself an innovation of 1976… Article 83. No deputy to the National Assembly of People’s Power may be arrested or criminally prosecuted without the authorization of the Assembly or the Council of State if it is not in session, except in cases of flagrant malfeasance … “

One would hope for justice in Cuba that all are truly equal before the law; that are People’s Courts cannot be manipulated, and are impartial and fair as the citizens expect, for workers, subordinates, those undefended find protection for their rights, their longings, and their hopes.

July 18 2012

Entelechy: The Exercise of Self-Knowledge / Cuban Law Association, Wilfredo Vallín Almeida

It is interesting to read abut the lives and ideas of the of the philosophers from Antiquity to our own time.

They are deep thinkers who, from their perspective and personal appreciation, try to to give us an interpretation of what the universe is and respond to the great questions of all times: Who are we? Where are we going? What can we expect in the future? How should we live our lives?

One of these great men was Aristotle (384-322 BC) of Stageira, Greece. He had been a disciple of another great of these affairs, Aristotle of Athens, more commonly known as Plato, and later worked as a professor in his teacher’s Academy.

Aristotle is famous for many things, but for me the most innovative and extraordinary thing he left us was the concept he called “entelechy.”

To explain what the Stagirite wanted to say with this, I am going to offer an example that could be illustrative and and from which we can take a seed of some fruit.

A seed has the potential to become a fruit sometime. It will first become a germinating seed, then a bush, later a flowering tree and, finally, fruits, although it’s not absolutely sure to happen in this way.

But the potential and probability are latent in it for the fact of being a seed. Whether it becomes was it was conceived for by mother nature will depend on the environments, the external conditions that surround it.

Aristotle located this same probability and potential in the human being. Man (speaking in a generic sense) is born with the characteristics that belong to him by the sole fact of being a man and than can turn him into what he was destined to be: everything is dependent whether his environment supports the conditions for his development.

This environment that allows the full development of the individual in all his potential, should be guaranteed by the group the individual belongs to, by his society and, particularly, by the State, what was created by citizens through the Social Pact precisely for this purpose.

This idea will be taken up again by Pico della Mirandola when he writes his “De dignitate hominis” in 1486, with other words and in a dialog he recreated between God and Man, the same philosophical essence of Aristotle:

I have not given you a specified place, nor your own face, nor a special gift, O Adam, so that you desire and conquer and possess your place and your gift for yourself. Nature contains other species in some laws set by me.

But you, you have no limits, you define yourself according to your own freedom, in whose hands I have place it. I have not made you celestial, nor earthly, nor immortal, so that you will be sovereign over yourself, freely shape your own form, like a painter or sculptor.

Many years later this conception will be returned to by the great thinking Immanuel Kant, German philosopher (1724-1804), born and died in Königsberg, a city in eastern Prussia.

For Kant, entelechy (which he called “human dignity”) consists of understanding that we can never treat nor be treated as a means, but always as an end and act accordingly, so that no one can use others for his own interests, in that all exploitation (whatever it may be) is illegitimate and immoral and no man is more human than another.

This is precisely the basic fundamental idea that informs the entire Declaration of Universal Human Rights, our inalienable Rights which, however much they want to hide in their reality, will end up imposing themselves, because as another Great Thinker said, this one a Cuban like ourselves:

A good rider should not let go the reins of his horse, nor a free man his rights. It is true that it is easier to be led than to lead, but it is also more dangerous. And his own exercise of them is very bright, very animating, very invigorating and very ennobling.

May 21 2012

Extractions / Cuban Law Association, Wilfredo Vallín Almeida

Site of a collapsed building in Havana. Photo: Orlando Luis Pardo Lazo

Soon, a new population and housing census will take place that shall show how many of us there are and the current living situation in our country.

Among the many and ever more acute problems, that of housing is one of the most difficult given all that it implies for the family and individuals. Extended cohabitation among different generations, many times with a great deal of overcrowding, leads sometimes to the loss of values, dehumanization and domestic violence.

The cases of close family members — in a pitched battle for a place to live — turn out to be dramatic and many times embarrassing.

For some time now the inns where rooms were rented to couples by the hour — welcome in a country where multi-generational families cram into small apartments — have been converted to shelters for victims of hurricanes, fires, building collapses and so on. Today these true citadels crammed with people in precarious conditions.

Like many things in today’s Cuba, this problem remains static, without any sign of a plan or on the part of the State which, for many years, did not permit the repair of homes or the construction of new ones through the sale of building materials to the inhabitants; now it  appears there is no answer to this problem created by State itself over long long years.

Thus, the death of the owner of a home, often creates a whole conflict between those who consider they have a legal right to the housing for one reason or another, because they know: either they make it theirs or they will have to stay put… where no one wants to go or stay.

Another problem with this harrowing case is that of forced evictions … sorry, I meant to say “removals”.

When a house is abandoned by its inhabitants for any reason whatsoever, and sealed by the State, is not uncommon for the seal to be broken and be occupied by people who literally live on the street.

In other cases, there is no housing and people are forced into squats or one-room tenements, or they may “fabricate” (if this can even be called a fabrication) something that brings to mind a room but is made from cardboard, palm fronds, pieces of zink or whatever things that can find… and show up with wives… and children… sometimes babies.

In many of these opportunities, they end up forcibly evicted … sorry, (in Cuba there are no evictions), again, I meant to say the “extraction” which is performed by the security forces, responding to a different conception of “due obedience “.

And if the UN says in its document, The Practice of Forced Evictions, of June 1997…

Forced evictions constitute prima facie violations of a wide range of internationally recognized human rights and can only be carried out under exceptional circumstances and in full accordance with the present Guidelines and relevant provisions of international human rights law.

…it says what is wants to say because it doesn’t have anything to do with us since here there are no evictions… there are extractions.

Translated by: Michelle Eddy

July 13 2012

Prosecutorial Ethics / Cuban Law Association, Alberto Méndez Castelló

By Alberto Méndez Castelló

Some days ago, some 400 employees of the General Prosecutor Office of the Republic across the country signed a code of ethics. The notice was published on the front page of the daily Rebel Youth on Saturday, June 9th, under the title “Ethics Are Our Prosecutor”.

According to the article, the code has as its precepts justice, honesty, creativity, humanism, austerity, and professionalism, corresponding to socialist principles.

On receiving the newspaper, a woman didn’t even finish reading yesterday’s news, throwing it in the trash, which constitutes an unusual event: more than inform, the paper the news is printed on has other uses in Cuba, for which is it uneconomic to throw it in a waste basket instead of the toilet.

For such detachment, the woman claimed to have an experience with the law that made her hate everything having to do with judges and prosecutors:

“I can’t forget, and every time I hear them spoken of my stomach turns”, she said.

In Cuba, the prosecutor is the state organ to which the Constitution assigns two fundamental objectives: control and preservation of what we call socialist legality here, and the exercise of punitive action on behalf of the State.

“Due to problems with someone from state security who sued him, the court seized from my husband a TV that was owned by our son. I went to a prosecutor to intercede for the child’s rights, but instead of an advocate for civil rights, what we found in the prosecution was another accuser,” argued the boy’s mother.

According to Article 514 of the Law of Civil Procedure, third parties — this is the right that a third party alleges among other litigants — must be founded on the ownership of the property seized from the debtor or in the right of the claimant of exercising his credit with preference to the creditor.

The same law indicates in Article 521 that the complaint of third parties must present the title on which it is founded, without which it will have no recourse.

Article 48 of the same Law of Civil Procedure makes it clear that it is the prosecutor who represents and defends minors in the defense of their property and rights in cases such as this.

“We delivered the certificate of ownership to where it says that my husband bought the TV and ordered its installation in the name of our son. We brought seven witnesses to the trial and hired two lawyers,” she said.

“The witnesses stated that the purchase of the TV was actually made specifically for the child. Even the director of commerce who signed the ownership certificate testified that the set belonged to the person in whose name the buyer had ordered its installation,” he added.

“All for naught: the prosecutor of ’socialist legality’ presented just one witness; of course, under threat of being forced, if he didn’t present himself to testify, which he did in a second appearance. Imagine the rest of the story … the child lost the TV, there was someone from State Security in the middle”, the mother lamented.

As regards the exercise of public penal action in the name of the State, one also needs a strong stomach to work as a prosecutor in Cuba.

“The precept of Null Crime — this is an elementary principal of Criminal Law, where the alleged deed has to conform exactly to the type of crime prescribed by the law — in this case of the Cuban Penal Code, which has so many marshes that, rather than legal concepts designed to prosecute offenses, they resemble tricks designed to justify what is not sanctioned at any cost”, said a specialist in criminal science.

“Suffice it to mention the much bandied about Article 91 (acts against the independence and territorial integrity of the State) in which several dozen people were convicted in the Group of 75, and, more recently, for which Alan Gross will pay for with 15 years in prison,” said the specialist.

“The article in question does not specify what is the crime for which one can be sentenced from 10 years in prison to the death penalty,” said the lawyer. “It only says, ’He who in the interest of a foreign state commits an act with the aim of undermining the independence of the Cuban State or its territorial integrity.’”

“What deed? Perhaps an armed attack? Oral or written propaganda?”, the jurist asked.

The American Alan Gross is a prisoner in Cuba for bringing communications equipment onto the island, and Albert De Bouchet took his own life in exile in Spain after serving prison time for writing journalistic articles in Cuba.

Cuban prosecutors might have signed a code of ethics, but above all they must know that ethics doesn’t make one moral, in the sense that it is not by knowing a lot about ethics and possessing intellectual training in that respect is one is a person with better civic training.

They must know: a jurist, however academic, can be an individual of bad moral character. In fact, he is if he puts forward as the accused a private citizen of proven integrity, and yet asks that he be condemned because of what the codes say, that is what his masters say, regardless of the unwritten laws of morality.

It is well-known that without morals, no justice can possibly exist, and in Cuba, whoever does not know that morality is questionable.

Translated by: JT

[published in Diario de Cuba on June 20]

Published in Cuban Law Association site: July 9 2012

Decalaration of a Co-defendent / Cuban Law Association, Miguel Iturria Medina

By Lic. Miguel Iturria Medina

The presumption of innocence is a legal assumption in most modern legal systems where a person accused of a crime is considered innocent until they are convicted.

The individual enjoys the so-called State of Innocence that should be destroyed by the one who bears the burden of proof, the prosecutor, in a process that respects due process. The offender must be convicted in a trial. This principle has a second accession which is that it is mandatory to prove the facts independent of the statements of the accused, their spouse and close relatives.

With this principle, the defendant’s confession is no longer the Regina Probatio (Queen of the proofs) and the inquisitorial trial system, where in order to achieve this they resorted to coercive methods including torture, as a method of proof subject to later confirmation.

Currently, at least in theory, is not sufficient for the incrimination from one accused person to convict another implicated in the same case.

In the content of our Law of Criminal Procedure these assumptions are guaranteed. Article 1 establishes the principle alluded to as we discussed, and in Article 161 gives the accused the choice to give evidence or not, and in Article 163 is imposed on the officials concerned the obligation to conduct any investigation to verify the events leading the accused.

These assumptions are in effect not only with regards to self-incriminating statements from the accused, but also statements of an accused involving other people. The so-called co-defendants.

The declaration of a co-defendant, by its nature, does not have the rigor and quality of other personal proofs and requires further confirmation in other methods of proof; because the accused, unlike the witness is not obliged by law to tell the truth and is not responsible for any legal if failure to do so; in addition, in his condition as a part of the process he will always have particular interest in the outcome.

It is seen as a means of defense or incomplete evidence. The Act imposes the existence of other elements to form a conviction.

In short, no one can be sentences based only on their own testimony or that of another person implicated as an accused in the same penal process.

So much for the theory and the strict content of the law. Unfortunately, judicial practice does not always coincide with those arguments. Convictions contrary to the law occur relatively frequently.

Its foundation is based mainly on the alleged absence of motive for one defendant to want to unfairly prejudice another. For example: if their relations were good or there is no earlier situation of conflict between them, then it is estimated that for the most part the incriminator is being truthful and it is taken as evidence. Is that perhaps what is regulated in the law?

May 25 2012