Cuban Laws Favor State Arbitrariness / Laritza Diversent

There are many who say that Ministry of Interior agents do not need judicial authorization to officially summon a citizen. However, the Criminal Procedure Act, approved by the Cuban Parliament in 1977, requires that such diligence is done “through a summons issued by the Secretary,” a court official.

The official citation is intended to clarify or prove a crime under investigation. However, State Security agents use the “interview” or “define the situation” of independent journalists, human rights activists, bloggers and political opponents. In the majority of cases they do not comply with the legal requirements.

Procedural law regulates, albeit loosely, a procedure for this. In principle, the authority must substantiate, by judicial decision, with the clerk of court, the reasons for its decision. Then the judicial officer signs and issues the respective subpoena .

The process should ensure that citizens are not unnecessarily disturbed. In fact, in practice, no legal authority meets this requirement. Even though the law itself makes it clear that “citations issued without observing the requirements are void.”

The provision itself, however, clarifies that if the said person summoned appears, than the summons becomes fully legal, just as if it had been issued in accordance with the law. Citizens are unaware of this detail and, in the majority of cases, respond to an illegal summons assuming it to be legal.

The fact undermines the concept of the Rule of Law, which requires state institutions to be consistent with, at the time of exercising power, legal forms predetermined by the political representatives of society (National Assembly) and controlled by the courts.

In this case, the Criminal Procedure Act provides immunity to government bodies for their own actions. It also favors arbitrariness, among those who have the obligation to act in compliance with the law.

October 23, 2010

Between Unsuitable and Laid-off / Laritza Diversent

State Health Workers

The restructuring of the business system and institutional changes in the organization of the State, as announced by the government, involves the reduction of payrolls and declarations that workers are to be laid-off. In this process workers are declared unsuitable (lacking talent for their job) in order to sever the employment relationship.

The effects of the declaration of lack of suitability, and thus “availability” — that is the worker will be laid-off — differ. Both figures are recognized in the Labor Code (CT) as reasons for termination of the labor contract. However, they do not have the same origins or treatment with regards to wages.

The worker declared “available” — laid-off — has more protection under the law. The CT states that “an equal rating takes into account age, and equal qualifications plus seniority give more rights to the older worker.”

Those with partial disability, men over 50 and women over 45, can not be declared “available” as long as an entity has vacant jobs in which they can be employed, in accordance with their qualifications and ability to work.

These conditions do not apply to workers declared unsuitable. Skill in the profession is a requirement related to job tenure of an occupation. The legislation defines it as “Demonstrated Competence.” A management assessment takes into account a judgment of the worker’s performance on the job. When performance is considered lacking, the state agency terminates the employment relationship.

The “available worker permanently relocated” — that is a competent person who is laid off — receives the national average wage, 414 Cuban pesos (about $17 in freely convertible currency), or the wage of the position or occupation they have been laid-off from, whichever is greater. Where there is no possibility of their being offered another job, they are sent to work in construction or agriculture, but with the same wage guarantees.

The person who is not suitable — that is declared not competent to perform their job — receives the wage of the new position to which they are assigned. In practical terms, the State, the only legal employer, chooses this latter option as it then has less responsibility and fewer guarantees it must meet.

In the case where there is no possibility of reassigning the ineffective or reclassified person within the same workplace, their salary is guaranteed for two months, starting from the date on which they are laid off.

In the case of workers who are declared laid-off but who “unreasonably” refuse accept it, they have only the right to receive the guaranteed wage for one month after they are laid-off. If a person is declared “unsuitable,” the labor contract is terminated with no right to receive any wages.

Thus, by declaring excess workers “unsuitable”, the State, which says it has a policy of full employment in the labor system, frees itself of commitments to comply with the legal guarantees of Cuban workers.

October 21, 2010

The Internet is Not Within the Reach of All Cubans / Laritza Diversent

In Cuba, access to the internet is restricted and very expensive for citizens, but it is also is controlled by state institutions. Those limitations violate the right to information that every human being should enjoy. However, they are backed by legal standards imposed by the government.

On June 14, 1996, the Executive Committee of the Council of Ministers, through Decree 209, “Access from the Republic of Cuba to Worldwide Information Networks,” established its strategy regarding the Internet. In that year, Cuba was officially connected to the network of networks.

The statute states that the policy with respect to the internet was drawn according to national interests. It recognizes the goal of ensuring full access to the services from Cuba, but decreed their selective character. According to the government, restrictions on individuals, are due to measures imposed by the U.S. embargo which limit the conditions and quality of the connection.

However, the standard issued by the Council of Ministers, said that these restrictions are to ensure that the information distributed is accurate, that it is obtained consistent with ethical principles, and that it does not affect the interests or safety of country.

To enforce the policy, Decree 209 created an inter-ministry committee charged with authorizing direct access to the Internet. It also prioritizes the connection to legal persons and the institutions most relevant to the life and development of the country.

The committee also regulates the use of information from the global network and is responsible for proposing the decisions that the government should take in relation to computer security, and connection to the services provided.

For several years the government has prioritized access to an internal interconnection project (the intranet). Connected to it are primarily academic, health and other professional areas. This national network ensures complete control of information and minimizes direct connection to a network with global reach.

The inter-ministry committee is chaired by the Minister of Informatics and Communications, and includes the ministers of Science, Technology and the Environment, Justice, Interior and Armed Revolutionary Forces. The latter two regulate access to the Internet to reconcile it with defense and national security.

In March 2008, President Raul Castro allowed the free sale of computers. However, free internet access is still out of reach of the citizens. These restrictions are justified by the economic, technological and communication limitations of the country. Decree 209. However, makes it clear that the worldwide information networks are seen by government as a danger to state security.

October 27, 2010

Members of the Repressive Bodies Act on Their Own / Laritza Diversent

This citation says that failure to appear will result in a fine of 500 pesos.

In a State of Rights, based on legality, there is respect for civil liberties and equal justice. Also implied is legal control over government activities, to break the impunity of the State for its own acts. However, illegality in Cuba has been turned into an extensive practice, principally by state bodies.

Is it normal that a police officer, or members of State Security, will cite a citizen. But the only ones legally permitted to do this are the investigator, the prosecutor or the court. Those in uniform are agents of the authority whose only role is to deliver the document.

The agents undertake, without legitimacy, acts under their own authority or that of a public official, giving them an official character. This is a crime controlled under the Penal Code under the title of, “Usurpation of Public Functions.”

The citizen doesn’t know that, in these cases, they can denounce the usurpers before the military prosecutor. But it is difficult to get them to accept an accusation of this kind. The impunity of the State system rises to unsuspected levels, along with ignorance of the criminal proceedings.

It is also common, in a warning issued, for not appearing in response to an illegal official citation, that the agents of the authority will add a zero to the legally established fine. The law provides for, on a first offence, the imposition of a 50 peso fine, the second to a legal proceeding for disobedience.

In the notice, the police and members of State Security, warn that ignoring the summons will incur a fine of 500 pesos. The law requires that a person obey a summons from an authority, whenever this citation meets legal requirements. The “inflated” figure is a kind of coercion to impede the exercise of known rights.

Disregard of the criminal procedures is a result of the excess of power granted by the State to its repressive organs, at the expense of civil liberties and the legal security of citizens. A fact that allows the officials of the State and the agents of authority to ignore the legal requirements and act on their volition.

Choosing the “Suitable” People Who Will Keep Their Jobs / Laritza Diversent

Photo: State watchman, by Orlando Luis Pardo

The meetings have started between the leaders of State institutions and their workers, to report on the process for reducing the payrolls, which is expected to be completed in the first trimester of the coming year.

The directors of the State agencies have announced to the workers that advisory committees are being created, charged with the selection of the qualified personnel who will keep their jobs. In the week just ended, the Ministry of Labor and Social Security (MTSS) in Arroya Naranjo, the poorest municipality in the capital, declared there to be 1,300 excess workers in the area of Culture.

The “Income Committees,” named such in the labor legislation, are composed of workers assigned by management, the union, the Cuban Communist Party, and the Young Communist Union.

The President of the Councils of State and of Ministers, General Raul Castro, warned in the last session of the National Assembly, that there would be strict “observance of the principle of demonstrated suitability when it comes time to decide who has the greatest right to occupy a position.”

According to the Labor Code, the state government may terminate the employment contract for, among other causes, ineptitude, lack of suitability, or a declaration of lack of need for the position. Resolution No. 8, “General Regulation on Labor Relations,” issued in May 2005 by the Ministry of Labor and Social Security, governs the treatment of wages in these cases.

Trade unions and governments, by mutual agreement, decide on techniques and procedures used to determine the permanence of workers in their employment. The commission recommended, and the Chief of the entity confirmed, the loss of “Demonstrated Suitability.”

When a worker is declared unsuitable, the administration of the entity will facilitate their relocation and guarantee them a fixed salary for two months from the date they cease working at their job.

So far the relocations have been in agriculture and construction, sectors with a chronic shortage of workers and where the majority of Cubans refuse to work. If the worker doesn’t accept the offer, the labor relationship is terminated, without the right to receive any salary payments.

Workers are feeling insecure. Many say that the state salary, although insufficient, is the only source of income they have to pay their share of the costs of subsidized food and electricity.

Most families, some with debts to the bank over 10 years old, are paying a percentage of their salary in monthly installments for the appliances they received in the “energy revolution.”

The Cuban Government Is Playing Sly On Human Rights Agreements / Laritza Diversent

While both the European Union and the United States condition their relations with the Island’s Government on progress on human rights, the Cuban State remains silent concerning its ratification of the international agreements in this area.

On February 28, 2008, four days after Raul Castro assumed power, the former Chancellor Felipe Perez, signed the International Agreement on Civil and Political Rights and the International Agreement on Economic, Social and Cultural Rights, in New York.

Was this intention, or was it a simple strategy?

I’ll explain. Since December 1966, these two Agreements have been open for signature and ratification by all of the member states of the United Nations. Havana signed these agreements two years ago, but has yet to ratify them. The International reaction has been positive. The new government gave the impression when it signed the agreements that it was emerging from its isolation and was guaranteed legitimacy. There was even talk of possible changes within the closed Cuban system and of a visit to Cuba by Manfred Nowak, the UN’s special envoy on Torture. But there were neither changes nor was the UN’s special envoy able to travel to visit the Island’s jails.

In spite of announcing (and then failing) to lift the prohibitions, the government managed to end the European Union sanctions and a private dialogue, without results, on human rights. However, to date, the Cuban State not has given its consent to enter into international commitments on human rights.

Who can make this decision?

The Cuban Constitution of 1976 and the Decree-Law 191/99, regulate the internal procedure for the ratification of international treaties. The respective decisions or agreements of the Council of Ministers and of the Council of State must be integrated in the process. The Council of Ministers approves, while the Council of State ratifies. No other country has this process in which the approval of the Government is divided in two acts.

As the procedure is different in Cuba, the Ministry of Foreign Affairs has to wait for both consents, both that of the Councils of State and Ministers, and then prepare the instrument of deposit or diplomatic note to ratify the UN agreements.

What is the reason for this delay?

According to specialists that I consulted, the two Covenants have not been ratified because the application of these international agreements in the country is seen as a threat to the dynasty of the Castro brothers. And because States that ratify these Agreements, undertake to take appropriate measures to enact the necessary legislation so that the civil, political, social and economic rights of their citizens are respected.

This would mean that the Cuban Government would have to carry out major reforms in its legal system. It should, for example, to repeal Law 88 (the gag law), which prevents the freedom of expression.

It would have to abolish Law #989 enacted on December 1961, that enforces that permission is required to enter or exit the national territory, as well as the definitive abandonment and the confiscation of property of emigrants. It would also be required to abolish Decree 217 that regulates internal migration to Havana, and prohibits residents from other regions from establishing a household in the capital.

The validity of the Agreements would require a reformation of the Constitution, which penalizes the exercise of the rights of those opposed to the existence and purpose of the Socialist state. In addition, it implies a serious change in the political system, particularly as regards the existence of a single party. The Constitution recognizes to the Communist Party of Cuba (PCC), as the “top leading force of society and State.” This recognition includes its ideology.

Political pluralism is legally forbidden. The PCC does not support equality with other parties, nor recognize the legitimacy of any different ideology. The law of associations also contemplates the existence of other political organisations. The current rules and peculiarities of Cuba’s legal system contradict the principles supported by the Pact of Civil Rights, which recognizes the freedom of opinion, movement and association.

The delay in these ratifications to the United Nations, is the responsibility of the Cuban Government. The main reason for the delay, as an independent lawyer sums it up: “If the regime ratifies and puts into effect the International Covenants on human rights, it would be shopping for rope for its neck”.

What Roque Pérez — who was subsequently fired — signed in New York in 2008, was only a strategy of distraction by the Cuban Government to win political time.

Laritza Diversent

Translated by: Tony D. Saiz

September 21, 2010

Cuba: Homophobia is Not Eliminated With Laws / Laritza Diversent

Mariela Castro Espin, 48, Director of the National Center for Sex Education and one of the four children president Raul Castro had with the engineer Vilma Espin, is probably better known overseas than in Cuba. Her conferences and interviews usually receive good press coverage in the nations she visits.

When the island launched a campaign for sex education in 1975, Mariela was 13-years-old. It was her mother, president of the Federation of Cuban Women, who made is possible, thanks to the work and dedication of two experts: the Cuban doctor Celestino Álvarez Lajonchere and Monika Krause, a sexologist from the old German Democratic Republic and inspiration for the film The Queen of the Condom.

In her most recent globe-trotting, through Italy, Switzerland and Germany, the woman who is also Fidel Castro’s niece, said that the next challenge will be to include the rights of gays, transvestites, lesbians and transsexuals in The Family Code. “Hopefully the Santeria God Changó is listening. The situation of gays in Cuba is better than in past years, but they are still a long way from being respected and having full rights, like gays in the developed countries of Europe,” remarked a gay Cuban living in Switzerland.

For two years, there has been talk of including homosexuals in the Family Code. It’s true that the Cuban authorized the celebration of the International Day Against Homophobia, on May 17, as well as sex change operations. Positive actions, but viewed with suspicion among the public, where there are still many prejudices.

Some think homosexuality s a smokescreen. Pure show. And the historic leadership, above all the related General Raul Castro, could be trying to turn his daughter into a presidential figure. It is no secret that she has to opportunity to propose legislative because she is “Papa’s daughter.”

The center that Mariela Castro directs is not a social organization of the masses, like the Committees for the Defense of the Revolution. Nor is it a legal entity recognized by the Constitution to propose laws to the National Assembly of People’s Power, the Cuban parliament.

We can deduce, then, that she would use family relationships to achieve her goals. A possibility not open to any opposition group such as the Christian Liberation Movement, of Oswaldo Payá Sardiñas, who presented the Varela Project in 2002 and was rejected.

Without the intervention of Raul Castro’s daughter would the high levels of power interest themselves in addressing the rights of homosexual Cuban? The gay, lesbian and transvestite Cubans, for that matter, are not organized into state-recognized associations. The possibility that they can be represented in parliament and participate in the political life of the nation is remote.

Other people see the Castro descendant as a public relations official. With a more agreeable presence than other members of the region, her mission would be to show the world that human rights are respected in Cuba. Almost always her declarations echo the foreign media, not the national media.

Inside, things are quite different. The local media do little to raise awareness and promote tolerance toward the homosexual in such a macho society as Cuba’s. A mentality that could change if people could see documentaries on TV like Another Carmen and The Mistaken Body, based on real experiences.

Not everyone on the island agrees with the legal proposals being made by the most famous of the Castro Espins. They argue that other realities have a higher priority, like freedom of expression and association, free access to the internet, and the elimination of permits to leave and enter the country.

Apart from some other criteria, what guarantees could homosexuals have to exercise their rights, if the rest of the human prerogatives recognized in the national legal system are seriously violated? It would be the same as it is with racial discrimination. It is proscribed by the Constitution of the Republic, but no court has jurisdiction to accept a case of racism.

Homophobia is not removed by laws. Meanwhile, gay and transvestite Cubans are the victims of police abuses, of drug addiction, alcoholism and prostitution. In recent times they have become a strong attractive for sex tourists. When it gets dark, it’s enough to walk around the central areas of Havana, like La Rampa and the Malecon, to prove it.

In other times the Malecon was called “the wall of sin,” because heterosexual couples gave loose rein to their ardor along it. Now it’s called “Galapagos Islands,” for the great number of gays and transvestites who meet there at night.

Laritza Diversent and Tania Quintero

Photo: Laritza Diversent

Note: After this article was written, a long interview with Mariela Castro Espin was published on a Swiss site. Mariela Castro lied in Switzerland about the Military Camps in Aid of Production (UMAP)*; the first correction to her assertions appeared in the on-line news magazine Cubaencuentro.

Translator’s note: UMAP was a system of work camps where homosexuals, Jehovah’s Witnesses and others deemed to be hostile to the communist regime were imprisoned.  Mariela Castro Espin recently claimed that Fidel Castro was unaware of this.

October 16, 2010

Pros and Cons of Self-employment / Laritza Diversent

According to the newspaper Granma, starting in October you can work for yourself in 178 activities. In 83 of them you can hire a labor force. Seven have been added to those previously authorized, and 29 of 40 once prohibited activities are now legal. In nine the ban is maintained because of the lack of a legal market to obtain materials and supplies.

In general terms, self-employment will continue to be a complement to State-run enterprises. Also the regimen of violations will be maintained as will the system of inspections and routine visits from the authorities. The widening of the activities does not include the authorization to buy raw materials wholesale, which will limit the earnings of those who work for themselves, plus with the new regulations they will also have to pay taxes.

Self-employed were obliged to pay taxes on their personal income and to pay registration fees and license renewal fees every two years. With the new regulations they will have to pay sales tax, taxes for public service, employment taxes and social security.

The self-employed, as a general rule, are required to offer their services to individuals in national money, that is Cuban pesos rather than convertible pesos. In reality, they will have to acquire the means to carry out their work and raw materials in the established network of state enterprises, which sell in convertible pesos, and which recently have been very short of supplies. (1 Cuban peso ~ 24 convertible pesos.)

Also, the self-employed must keep official receipts when they buy supplies or the means of production, to demonstrate their legality. According to the Economy Minister, Marino Murillo, at least for the coming years, there will be no wholesale market selling to the self-employed.

Private workers can only trade in their own products. They are prohibited from reselling industrial products or food products that are sold or previously prepared in established state enterprises serving the culinary and food network.

Nor can they prepare or sell milk or dairy products, except if they acquire these products in the established sales network in convertible pesos, and are able to provide invoices and receipts proving their origin.

The new regulations, despite the widening list of activities and the elimination of prohibitions, some of them criminal (hiring labor), are tied to the free trade and demand of the non-State market. These limitations, along with the stepped-up state supervision and inspection, will limit future possibilities for operating a small business.

October 10, 2010

Custom Filters / Laritza Diversent

Cubans who opine publicly regarding the Government, are condemned to suffer confiscation. The Customs Office for Post and Shipments (APE), an entity which is part of the General Customs Office of the Republic (AGR), has a filter for seizure for shipments abroad, applicable to dissidents.

Within the last 2 months, this agency has confiscated 2 shipments that had been sent to me from the United States. I was advised on the 13th of August about the most recent, via the “Resolution of Forfeiture #1209” dated the 29th of July, 2010, and an Act of Forfeiture and Notification, both documents signed by Danny Samada Rivero, Inspector of Customs Controls.

Had this occurred once, one could consider it an issue of chance. A second occurrence would be a purposeful act of viciousness; but if other people with the same uneasiness regarding the political situation suffered the same indignities, then it’s a matter of a strategy of the State. A subtle form of punishing those who dare question the status quo of the system.

I have no doubts, this administrative act has a political underpinning. Its not a coincidence that it applies since various months to the forfeiture of shipments from abroad to various dissidents against the Government, including Yoani Sanchez, the author of the “Generation Y” blog.

As per Samada Rivero, the contents of the package were contrary to the general interests of the nation. He used Resolution #5-96, from the Manager of AGR, as the basis for the forfeiture. The first was applied by the resolution of forfeiture no. 978, on 8 June. On that occasion Raimundo Pérez García, Inspector Control Customs seized the shipment arguing the same reason and legal basis.

Resolution No. 5 of the AGR, existing since 1996, allows the application within the national territory, of the International Convention on the Suppression of the circulation and traffic in obscene publications.

The rule prohibits the importation by shipments, of “any object whose content is considered contrary to morals and good customs or which go against the “general interest of the nation”. In addition, the seized products are to be delivered to the corresponding body of the Ministry of the Interior.

Under both resolutions customs Control Inspector, Samada Rivero and Pérez García, failed to explain in what way the imported articles affected the general interests of the nation. Most of the products were for personal hygiene, health and for use in an office, of general, every-day use for a household. The same products are for sale in State shops and foreign currency stores, within the national territory.

At the end of July, I lodged an appeal to the head of the customs, requesting cancellation of the first resolution of confiscation. On August 17, I was notified of the resolution of Appeal No. 231 of 2010, denying my claim.

The officer, Raúl Gómez Badía, the ultimate authority of the organ of the State in question, considered the measure applied by the customs inspector, Raimundo García Pérez, as being correct. That decision exhausted the administrative process open to appeal the decision; the next recourse is the judicial path in open court. My next step will be to claim my rights before the revolutionary courts.

Perhaps the new offensive has another goal. Destroy attempts to re-establish communication between Cuba and the United States. The products were imported from that northern country through agency “Universal Postal service” in the Office of international exchange (OIC). Cuban and American representatives initiated talks to standardize the service of mail between the two countries in September 2009.

On the other hand, the filters of the Customs Agencies show that political interests that run the country, supersede the interests of all Cubans. It punishes equally, applying the legislation extraordinarily and arbitrarily to a group of citizens who publicly express their feelings about the Government.

September 11, 2010

Administrative Silence on the Judicial Route / Laritza Diversent

Article 63 of The Constitution of the Republic of 1976, revised in 1992, provides that “Every citizen has the right to address complaints and petitions to the officials, and to receive the appropriate attention or responses within a reasonable time, according to the law.”

Article 63 of The Constitution of the Republic of 1976, revised in 1992, provides that “Every citizen has the right to address complaints and petitions to the officials, and to receive the appropriate attention or responses within a reasonable time, according to the law.”

What happens if the authority remains silent before a protected citizen request in exercise of the right of petition?

The interested party can understand his request to be refused, by administrative silence (negative silence).

Administrative acts resulting from silence may be appealed through both the administrative agency and the courts. They take effect upon the expiration of the deadline for decision and notification (or attempted notification) of the specific ruling, as if it had actually been issued.

The deadlines for filing appeals are to be calculated from the expiration of the deadline for decision and notice.

The Law of Civil Procedure, Administrative and Labor, in effect in Cuba since 1977, recognizes the right of citizens who do not receive a response to bring suit against an administrative official who does not resolve any petition within the legal deadline. Interested parties may consider their applications rejected, and take appropriate action against the refusal.

But the procedure is virtually obsolete on the island, resulting in part from the legal ignorance that Cubans suffer from, and because few lawyers dare to pursue a lawsuit against a government representative.

Note: To proceed on the judicial route it is necessary to exhaust the administrative remedies (appealing all issues at every available level).

September 10, 2010

Legal Representative of the Minister of Justice Appears in Court / Laritza Diversent

This past August 10th, Dr. Diego Fernando Cañizares Abeledo, a specialist in the Legislative and Advisory Directorate of the Ministry of Justice (MINJUS), appeared before the Second Civil and Administrative Chamber of the the Havana Provincial Court, representing Justice Minister Maria Esther Reus González on the administrative claim filed by the attorney Wilfredo Vallín Almeida, based on the silence of the Administration, asserting the right of appeal recognized in the Constitution of the Republic.

In his brief, the Minister’s lawyer described the claim as “nonsensical.” In his opinion, the plaintiff, Mr. Vallín Almeida, chose “a legal wrong way. We do not know for what specific purpose,” he argued. In his view, the President of the Cuban Legal Association should try to gain legal recognition through the Associations Act, without the Ministry of Justice being required to issue anything in writing.

On April 7, 2009, The lawyer Wilfredo Vallín Almeida, president of the Cuban Law Association, a union of dissident lawyers, on behalf of his organization, had asked the Registrar of Associations of MINJUS to certify that there was no Non-Governmental Organization (NGO) in the country with the same name and purpose as the association of attorneys.

The state agency never issued the certificate, a document which is essential to continue the legal procedures for setting up the union. In March 2010, the group reiterated its request and received no response. The lawyers, on administrative appeal to the Minister, Reus González, lodged a complaint for breach of the required legal formalities, which was also ignored.

The Law of Civil, Administrative, and Labor Procedure (LPCAL) provides that if the administrative authority at any level of the hierarchy does not resolve an appeal by the legal deadline, or after the expiration of 45 calendar days, then the application shall be considered rejected, with the effect of establishing that implied rejection for the subsequent appeal.

Cañizares Abeledo, appointed by Ministerial Resolution No. 215 on August 6, 2010, alleged that it was impossible to deliver to the court the applicant’s government record, and the administrative decision of the head of Justice relating to the matter raised by the plaintiff, Mr. Vallin Almeida, claiming that the agency had no documents regarding the matter.

Translated by: Tomás A.

September 9. 2010

Marambio Has Nothing to Fear / Laritza Diversent

In the Cuban legal system there is no procedure that allows president Salvador Allende’s ex-bodyguard to testify as an accused before the Chilean prosecutor.

He will be judged according to Cuban law and within the national territory, in person or in absentia. If he returns to the island to respond to the accusations, he can count on serving his sentence in his own country, if there are treaties to that respect between the two nations.

Not withstanding the foregoing, the official summons issued by the Ministry of the Interior (MININT) and published in the Official Gazette, the organ of dissemination of government laws and acts, does not meet the formal requirements of Cuban procedural law. Normally the Cuban authorities, in their procedures, act on their own irrespective of the legality.

In the summons to Marambio from the prosecutor, are: his name, surnames, address of the one summoned; the reason for the summons; the day he is required to appear and the consequences of failing to do so.

However, the summons did not state the place nor the time the leftist businessman must appear, requirements of the law. Nor was it authorized by a judicial authority. The provision requires that the “the summons is issued by way of a certificate sent by the secretary” of the court in the matter.

In the case of a judicial proceeding undertaken without observing the provisions of the Law of Criminal Procedure, it is established as invalid, under Article 86. MININT’s own note refers to this provision. This, at the same time clarifies that if the person summoned appears, the summons becomes legal.

Finally, it is clear that the arrest order has international repercussions.

The publication in the Official Gazette of the Republic of Cuba of both notes as required, is a prerequisite for the declaration of non-compliance and the trial an absentia, in the case of an accused who is outside the country.

The Cuban judicial system provides for the continuation of the proceedings against the accused declared in non-compliance until its final resolution, in the case of crimes against the fundamental, political or economic interests of the nation.

Marambio has no reason for fear. The revolutionary government has no intention of pursuing the international businessman who, thanks to his business dealings on the island, managed a group of companies moving more than 100 million dollars annually. It’s true, he knows he cannot return and lose everything he had and enjoyed here.

September 8, 2010

Are There Guarantees in Cuba for Marambio? / Laritza Diversent

Another issue is to certify that the proprietor of the International Network Group(ING) will have his guarantees respected. One of the managers of “Alimentos Rio Zaza,” the private company formed between the Cuban Government and Marambio was the 59-year-old Chilean Roberto Baudrand. He was under house arrest in Cuba and endured strenuous interrogation sessions. In April, he was found dead at his apartment.

The Cuban autopsy, accepted by the family of the deceased, certified that the cause of death was due to respiratory failure combined with the consumption of drugs and alcohol. There is still doubt if the death was due to accidental death or to suicide.

With respect to whether the criminal process against Marambio will take place in part in Chile, I have my doubts. The questionnaire with 21 questions presented to the businessman by the Cuban authorities, is a different process. In this case, his answers are that of a witness.

In the investigation other directors of his companies in Cuba are implicated, accused of paying bribes, embezzling funds and diverting resources outside the country. Marambio was linked to the corruption scandal that involved the director of Institute of Civil Aeronautics of Cuba (IACC) and Major General Rogelio Acevedo. Lucy Leal, director of ING, was arrested and is being investigated.

Cuban procedural law provides that when the witness resides outside the national territory treaties between the two countries, if any, will be observed. If there are no treaties, formal letters through diplomatic channels will be sent, according to international practices.

The proceedings, the summons and the indictment, officially published by the Cuban authorities, are formal procedures, not administrative ones as believed by the lawyers for the Chilean businessman.

September 7, 2010

Marambio: Accused or Witness / Laritza Diversent

The subpoena and indictment prepared by the Ministry of the Interior (MININT) against the 63-year-old Chilean businessman, Max Marambio, has raised innumerable questions. The first of these is what would happen if the close friend of the eldest of the Castros decided to return to the island.

The chances that the authorities would put him in jail, as a preventive measure, are high. The criminal proceeding against him is in its preparatory phase, when the investigation occurs, the legal facts are described, and so on.

They also want to assure that the defendants show up for the day of the trail. Given that “The Fat Man,” as Marambio is known in Cuba, lives outside the country, provisional detention would be the most effective assurance.

Another question is whether Marambio’s attorneys can travel to Cuba and represent him in the investigation being carried out against him. In order to be named as a defense attorney, under the Cuban system, the individual must be part of the process.

This would start when the person is the object of a preventive measure (pre-trial detention, bail, etc.). It means that you must first appear before the instructor (similar to a district attorney) as required and testify regarding the facts alleged against you. After this your attorney is appointed.

The Chilean courts returned the warrant to Cuba, citing errors that prevented their compliance with it. For example, the lack of clarity regarding Marambio’s situation, and whether he is a witness or a defendant.

The note published by MININT in the Official Gazette of the Republic of Cuba, however, expressly lists Max Marambio as the “accused” for the crimes of Bribery, Acts Detrimental to Economic Activity, or of Procurement, Embezzlement, and Falsification of Bank and Trade Documents, and Fraud.

There is no doubt, the businessman is called as a defendant. It’s worth mentioning that Cuban law does not provide for the presence of a lawyer during questioning, nor in the obligation to instruct him in his rights. For example, there is no duty to declare the charges against him, which can be done at any time or as many times as desired.

September 6, 2010

Justice Minister Names Legal Representatives / Laritza Diversent

The Justice Minister Maria Esther Reus González, issued Aug. 6, Resolution No. 215, which names two counselors at the Ministry of Justice (MINJUS), Dr. Diego Fernández Cañizares Abeledo and Attorney Nelia Caridad Aguado López, experts from the ministry, to act without prejudice to its final completion, in the administrative proceeding brought against her, before Second Civil and Administrative Board of the Provincial Peoples Court of the City of Havana by independent jurists.

Attorney Wilfredo Vallín Almeida, president of the Cuban Law Association, a union of dissident lawyers, asked the MINJUS Register of Associations on April 7, 2009, on behalf of his organization, for a certification which the state agency never issued. Reus Gonzales, designated by the Council of State in March 2007, is empowered to direct the operation of the National Registry of Associations, and to guide and monitor government policy on partnerships and foundations.

Counsel Almeida Vallín filed a complaint with the People’s Provincial Tribunal of the City of Havana, regarding its administrative silence before the Appeal submitted to the Minister, which still has not been responded to in accordance with the provision of Law No.54 “The Associations Act.” Last 28 July, the head of MINJUS received a summons from the tribunal requiring her to name legal representatives.

September 9, 2010