Category: Laritza Diversent

Agent 007 Is Running Out of Time / Iván García & Laritza Diversent

Chilean businessman Joel Max Marambio Rodríguez faces a deadline of August 23rd to appear before the Inspector from the Ministry of the Interior (MININT), Lieutenant Colonel Francisco Miguel Estrada Portales. If he does not appear before the time runs, the criminal proceedings initiated against him could proceed to a final judgment of guilt.

How does an intimate friend and protegé of the elder Castro reach this point, managing the business of a holding company that moves more than 100 million dollars a year? Why would a friend of the revolution for more than 40 years become its adversary?

There are still many unanswered questions, some of which will be answered in the course of the trial, where the Chilean businessman will apparently be tried in absentia and evidently he holds the key to the box of secrets. Marambio, age 63, a former bodyguard of ousted President Salvador Allende and former friend of Fidel Castro, is accused by the Cuban government of the crimes of bribery, acts detrimental to economic activity or employment, embezzlement, falsification of banking and commerce documents, and fraud.

The businessman, owner of International Network Group (ING), was a partner of the Cuban state in the joint venture “Río Zaza Foods,” specializing in the production of juices, dairy products, and alcoholic beverages for the Cuban market and abroad. In late 2009, the Auditor General, a state body subordinate to the State Council, chaired by Army General Raul Castro, began investigating the leftist entrepreneur’s businesses on the island.

Unofficially, he was linked to a corruption scandal involving the deposed director of the Institute of Civil Aeronautics of Cuba (IACC) and Major General Rogelio Acevedo.. Max Marambio and his brother Marcel, were also partners of the IACC in the Sol y Son tourist agency. Several directors of the company were arrested, accused of paying kickbacks, misappropriating funds, and diverting resources abroad. Lucy Leal, executive director of ING, was arrested and is being investigated.

Authorities have not officially said anything about the scandal. In April, however, they acknowledged that Marambio’s companies were under investigation, when one of the managers of Rio Zaza Foods, the Chilean Roberto Baudrand, age 59, under house arrest and being subjected to interrogation, was found dead in his apartment. The Cuban autopsy, accepted by the family of the deceased, said the cause of death was respiratory failure combined with the consumption of drugs and alcohol.

Marambio, known in Cuba as “The Guaton” (the fat man) was summoned and questioned by Inspector Estrada Portales, in late April and early August. The officer is in charge of the investigation. The summonses were published by means of two MININT notices in the Official Gazette of the Republic of Cuba, the agency that discloses the laws and governmental acts on the island. To date, he has not appeared.

The Summons was issued on July 19. In it, the MININT inspector summoned the Chilean businessman to appear before him on the 29th, warning him that if he did not appear on the date indicated, an indictment would be issued on August 3. Officer Estrada Portales ordered the police agencies and State Security to search for, apprehend, and present Marambio within 20 days.

The summons expires on August 23rd. If the deadline passes without his appearance or presentation, he will be declared in default. In the case of crimes against the fundamental political or economic interests of the nation, the Cuban judicial system provides that proceedings against a defendant declared in default can proceed to a final decision.

The judicial system in Cuba offers few safeguards for defendants. The criminal case against him is in the preparatory phase, when pretrial proceedings are conducted. If Marambio returns to the island he is most likely to end up in jail, as a precautionary measure to secure his appearance. Until then, he cannot appoint a legal representative for his defense.

Everything seems to indicate that the legal route will be the means of settling accounts. The publication of the summons and indictment in the Official Gazette of the Republic of Cuba is a formal requirement. The island’s government does not intend to pursue the businessman internationally.

The aim is to declare him in default and try him in absentia. In that case, he could appoint a lawyer. He could also appear at any time and revoke the declaration. He could even void the final judgment against him and be heard in a new trial. Marambio could be a time bomb for the Castro brothers. For what he knows and for what he has been quiet about. We suspect he will not return.

Iván García y Laritza Diversent

Translated by: Tomás A.

August 23, 2010

The Cuban Customs Office Confiscates Parcels Addressed To Dissidents / Laritza Diversent

In recent times the postal parcels from overseas sent to Cubans who publicly express disagreement with the government are being confiscated. The Post Customs, an entity belonging to the General Customs of the Republic has been using the seizures of shipments originating from foreign countries as a filter applied to the dissidents.

My own case can serve as an example. In less than two months they confiscated two parcels sent to me from the United States. I was notified of the most recent of these on August 13th by means of Confiscation Order No. 1209 from the 29th of July and a document of Retention and Notification, both signed by Danny Samanda Rivero, a Customs Control inspector.

If this happens once, it could be a coincidence. The second time it could be seen as an act of cruelty. But if the same thing also occurs to other persons sharing your political views then it is a case of state policy. A subtle way to punish those who dare question the system.

Undoubtedly, the administrative measure has a political background. The list of the affected ones includes Yoani Sánchez, Silvio Benítez, Dania Virgen García, Ubaldo Manuel León, Yusnaimy Jorge, Aini Martín, Vladimir Alejo y Julio Beltrán Iglesias, among other opponents of the regime.

According to inspector Samanda Rivero, the content of the package addressed to me “put the general national interest at risk.” He ordered the confiscation invoking Resolution No. 5-96 of the Head of the General Customs of the Republic. The first confiscation on June 8th was effected by Confiscation Order No. 978. Raimundo Pérez García, a Customs Control inspector, seized the parcel using the same argument.

The Resolution No. 5 of the General Customs, effective since 1996, allows the application within the country of the Convention for the suppression of the circulation of, and traffic in, obscene publications. Furthermore it bans the sending of “any object with content considered to be contrary to the morality, the proper conduct or the general interest of the nation.” Moreover, it stipulates that the confiscated goods are to be turned over to the Interior Ministry.

In both confiscation orders enforced against me the inspectors Pérez García and Samada Rivero failed to explain how those imported items “affect the general interest of the nation.” The two confiscated packages contained something like: an MP3 player, a photo camera, pencils, ballpoint pens, pencil sharpeners, notebooks, wax crayons, balloons, toilet soap, disposable razors, deodorants, plasters, toothbrush and toothpaste. All of these are products sold in state and convertible peso shops on the Island.

At the end of July I lodged an appeal before the Head of the Posts Customs requesting the first confiscation order be overturned. Dated August 17th I was notified of the Appeal Resolution No. 231 of 2010 that dismissed my claim.

The official, Raúl Gómez Badía, the highest authority of the institution deemed the measure imposed by inspector Pérez García appropriate. After having exhausted all available administrative remedies my next step will be to assert my rights before the courts.

Although the “new customs offensive” may have another objective. To destroy the hesitant attempts to reestablish the communications between Cuba and the United States. The confiscated goods were sent to me from the northern country by the Universal Postal Service agency of the Office of International Exchange.

On September 17th 2009, Cuban and United States representatives initiated talks in Havana that envisioned the resumption of direct postal services between both countries. At the end of the meeting that took place under much secrecy the Cuban delegation issued a statement.

It´s worth making it clear that the majority of Cubans don´t think highly of the customs services, above all of those at the airports. A proof of this is the video Abuse at the Cuban Customs by the acclaimed composer and singer Cándido Fabré.

Laritza Diversent

Translated by: undef@rocketmail.com

August 31, 2010

From Revolutionary Friend to Foe / Laritza Diversent

If Chilean businessman Joel Max Marambio Rodríguez does not appear before the Inspector from the Ministry of Interior, Lieutenant Colonel Francisco Miguel Estrada Portales, this 23rd of August (the deadline specified in an indictment), the criminal proceedings initiated against him could proceed to a final judgment of guilt.

Max Marambio was summoned and interrogated on July 10 and August 3, by Officer Estrada Portales, who is in charge of investigating the case, according to two notices published by the Interior Ministry in the Official Gazette of the Republic of Cuba. According to the published documents, the businessman lives in the “Las Condes” Commune in Santiago de Chile, where his business offices are also located.

Marambio, known in Cuba as “El Guatón” (the fat man), arrived on the island in the mid ’60s, when he made personal contact with then-President Fidel Castro. On the island he began his training as a guerrilla, under the direction of the legendary Manuel Piñeiro, known as Barbarossa.

At the end of that decade he returned to Chile and joined the Movement of the Revolutionary Left (MIR) and then led the Group of Personal Friends (GAP), the non-military cohort of President Allende. He took refuge in Cuba after the 1973 coup.

He also worked with Patricio and Tony Laguardia, in the Special Troops of the Ministry of Interior, and survived the political scandal that resulted in the firing-squad executions of Antonio Laguardia and General Arnaldo Ochoa in 1989. Then he was one of the founders of CIMEX, among the largest Cuban state-owned corporations, with annual revenues of more than one billion dollars.

During the decade of the nineties, under the protective wing of Fidel, he went from guerrilla to successful businessman, to the point that today he owns a holding company that does more than a hundred million dollars of business per year. His memoir, “The Weapons of Yesterday”, was presented a couple of years ago in the Havana Book Fair.

There is speculation about what caused his status to change from revolutionary friend to adversary. Some say it was for financially backing the campaign of Marco Enríquez-Ominami, who was dismissed from the center-left coalition that governed Chile for 20 years, and whose candidate lost to the rightist billionaire Sebastian Pinera.

Others believe that it was for indelicately demanding his capital, when a year ago Cuban authorities froze the funds deposited in Cuban banks, and the transfers of all foreign businessmen, because of the serious lack of liquidity in the country.

Translated by: Tomás A.

August 29, 2010

The Repression Against Dissidents Intensifies After the Prisoner Releases / Laritza Diversent

After his speech before the National Assembly, in which Raul Castro warned that “there will be no impunity for the enemies of the homeland,” the repressive and intimidating actions against opponents have intensified.

Troops from the National Revolutionary Police (PNR) and State Security (SE) agents selectively arrested several dissidents near the Malecón on the 5th of August.

The majority of the detainees were trying to enter the United States Interest Section in Havana, the only place on the Island offering Internet access to Cubans. That day was another anniversary of the “Maleconazo” – a popular uprising preceding the exodus of 1994.

Arbitrary detentions, official subpoenas and warnings are the measures most commonly employed by the political police to suppress the dissenters. On the 9th of August military counterintelligence (MCI) and State Security officers summoned for questioning the independent journalist Iván García.

The authorities fail to comply with the requirements for summons set forth in the Criminal Procedure Code. In most of the cases they act on their own, disregarding the law.

The agents claim that García has defamed military institutions in one of his articles published in the Spanish newspaper “El Mundo.” This Penal Code classifies this act as a crime against the public order and stipulates sanctions. However, the officers choose to warn the correspondent officially.

The reporter thinks that the officers who questioned him were applying the words of the President of the Council of State and the Council of Ministers.

The issue of several official warnings (at least 3) constitutes a precedent enough to justify a trial on the grounds of what is called “pre-criminal dangerousness” (peligrosidad predelectiva) because of antisocial conduct. This is one of the most commonly used criminal law concepts applied to the opponents of the regime. The sanctions can be as high as 4 years in prison.

The government made its point clear, that the recent releases of prisoners would not suggest an end to the use of the repressive methods. The First Secretary of the Cuban Communist Party explained that to defend the streets and squares would continue to be a revolutionaries’ duty.

The message is clear for those who hope for an improvement of the human rights situation on the Island. The prisons can be filled with political prisoners again at any moment and on any grounds.

Laritza Diversent

Translated by: undef

August 27, 2010

Confusing Scene / Laritza Diversent

Note from the “blog manager”: Laritza contributes to two blogs which we consolidate into one on this English translation website. This post is very similar to the August 22 post, “The Scene is Indeed Confusing” — they are from the two different blogs — and we have decided to publish it here as well.

Before the formation of the current Council of State on February 25, 2008, Fidel Castro resigned his posts in that body. In a public address he explained that the state of his health no longer allowed him to hold “a responsibility requiring more mobility and dedication than I was physically able to offer.”

In mid July of 2010, after several months of absence from the media, Fidel Castro resurfaced noticeably recuperated. The comments were quick to follow. Does he intend to reclaim his duties and return to power?

It’s speculated that he is attempting a “slap-on-the-hand coup” against Raúl Castro, after having relinquished the country’s leadership to him four years ago for health reasons. His younger brother respects him, too much for a man with the responsibilities of running a nation.

I also don’t doubt that Fidel Castro misses his position as thee number one on the island. But time doesn’t pass for the sake of passing. The current political scene doesn’t allow for reversal. Any action could be dangerous. A 20% voter abstention from the polls in the recent elections reaffirms that popular discontent is running out of control.

Someone asked me, if during this past extraordinary session, the National Assembly could have agreed to a new announcement calling for elections appointing the elder Castro as Head of State. From a legal standpoint, the idea seems ridiculous.

First, a compelling reason is lacking to justify a change in the country’s leadership. Second, if said reason should appear, it would reaffirm suspicions of a power struggle. However, in Cuba anything can happen.

It’s certain, that figure of the “compañero who reflects”* raises doubts as to who truly governs and decides in this country. However, his aged image and everything that implies — incoherence and mental lapses — show him as inept for leadership. The perception broadens. I don’t think the majority of the population would endorse his return, although I don’t doubt they would impose it either.

There is no doubt, the messiah sends us a sly little message: “Careful, I’m still in the game.” He’s trying to gain some space among the ambitious youth who wish to gain trust and positions in the highest spheres of power. But I suspect the interests of other characters hidden behind his figure.

Of course, his sudden appearance is related to the unprecedented dialogue that led to the release of the political prisoners of 2003’s “Black Spring”. The doubt arises as to whether the Cuban government will truly undertake measures to improve the human rights situation on the island, deserving a change in policy from the European Union and Washington. Incidentally, the reappearance of the ex-President questions Raúl’s capacity to make decisions and carry out essential changes within the system.

The struggles for power are unseen but they are felt. The internal performance of the repressive entities doesn’t always follow the same pattern. On one hand they repress — arbitrary detentions and intimidation of dissidents; on the other hand, they display a tolerance that begs the question: who’s giving orders? The scene is indeed confusing.

*Translator’s Note: “compañero who reflects,” is a reference to Fidel Castro’s regular column in the Cuban press, entitled “The Reflections of Compañero Fidel,” with the simple title of “compañero” — or comrade — intended to carry its own meaning.

Laritza Diversent

Translated by: Yoyi el Monaguillo

August 25, 2010

The Logic of the Predictions / Laritza Diversent

Two years ago, in a work I published about “the comrade who reflects,” I said:

“The elder Castro, in his reflections, goes back in time and rehashes the past, mainly the 60s and 70s, which suggests that ‘the providential man’ of the Cuban revolution, age 81, is showing symptoms of senile dementia.

“Easily recalling events of long ago as if reliving them is a manifestation of the disease, which attacks the elderly. The situation is being exploited to create a new history of the Leader, now from his personal point of view. Expect soon a literary work about this.”

On August 2, 2010, “former president” Fidel Castro released his book Strategic Victory, about the guerrilla fighting in the summer of 1958. The book, 896 pages long, chronicles the battle of the Rebel Army in the Sierra Maestra to stop the offensive of the armed forces of Batista, according to the voice of the “leader and strategist” of these events, as described on Cuban television.

Laritza Diversent

Text of the cartoon:
Coño, that’s a nurse! It’s not a Lady in White!

Translated by: Tomás A.

August 24, 2010

Minister Places Citizen in Indefensible Position / Laritza Diversent

Minister of Finances and Prices

In July 2009, The Minister of Finances and Prices, a member of the Council of Ministers, ordered the confiscation of property obtained by Teófilo Roberto, the father of Antonio Roberto, during the period from 1998 to 2008. The action was taken under the authority of Decree-Law 149 (“Regarding the seizure of property and income resulting from unjust enrichment”) known as the law against profiteers (the new rich), and its regulations, Decree No. 187, both from 1994.

The minister claimed that the seized items “are not fruits of honest labor,” but the Cuban Civil Code defines unjust enrichment as the transfer of items of value from one estate to another, without a legitimate basis.

The process also affected Pompilio López Licor, age 61, and Teófila Elsa Ávila Gutiérrez, 60, Teófilo’s brother and his wife, who along with his son Antonio, were named in a ministerial order as third parties who benefited from the unjust enrichment.

The defendants appealed against the ministerial decision through the Recourse of Reform before the same minister, who declared it without merit, confirming his decision, in October 2009. On June 22nd they appealed again to the head of Finances and Prices, the start of a special review procedure.

But the appeals do not stay the execution of the penalty of confiscation. Decree-Law 149 placed those affected in a state of helplessness, preventing them from access to the courts to demand justice against an act of the government that is harmful, according to Article 9 of the Decree.

Pedraza Rodríguez asserts that the three houses, two cars, a motorcycle and various items, including appliances, were obtained and authenticated by Theophilus, and hidden through subterfuge, on behalf of his relatives, without specifying which acts were illegal.

But he did not initiate legal action against the state officials who acted to legalize the goods and property of those affected. In particular the Arroyo Naranjo municipal housing management officials, responsible for implementing the Ministerial Regulation concerning real estate. On July 22, the state agency notified Antonio that he would be evicted within 72 hours.

The confiscation process was initiated and submitted to the Minister by Brigadier General Juan Escalona Reguera, subsequently released from his position as Attorney General of the Republic by the State Council, who may be linked to a corruption scandal involving foreign companies.

The assets seized from the Lopez family amounted to 2,347,834.24 Cuban pesos. The amount was certified by experts who did not specify, as is required by law, what their evaluaiton consisted of, or what the parameters of the process were, or what factors they took into account to estimate that figure.

Teófilo, Antonio’s father, is self-employed as a “producer-vendor of food and nonalcoholic beverages in a fixed point of sale,” according to the rules for the activity numbered 646. In his defense he claimed that he received income from his self-employment amounting to 521,000 pesos. But the minister countered that Theophilus hired labor.

The criminal law regards the use of non-family labor in otherwise authorized activities as illegal. But the ministerial decision issued by the head of Finances and Price did not refer to any criminal penalty imposed on the father of Antonio.

Teófilo receives remittances from the United States from six brothers and a son who live in that country. From January 2007 to December 2008, the National Bank of Cuba established that the relatives of the accused deposited remittances for him of 12,000 convertible pesos (CUC), equivalent to 300,000 Cuban pesos (CUP). The bank report was dismissed by Minister Pedraza Rodriguez, because it did not show that Theophilus had actually received the money.

Article 60 of the Constitution of the Republic states that “the confiscation of property shall be used as a punishment by the authorities only in the cases and procedures determined by law.” The Penal Code, regulates it as a specific penalty and accessory of a crime.

The Constitution, The Law of Criminal Procedure, and the Ordinance of the People’s Courts, guarantee that “No one can be tried or sentenced except by a competent court under the laws in effect prior to the crime and with the formalities and guarantees that they provide.”

In this case, the Decree-Law 149 is unconstitutional and illegal because it provides that the penalty of confiscation be implemented by an administrative authority, as an exemplary measure against those who obtained an illegitimate legacy as a result of theft, speculation, diversion of resources from state agencies, involvement in shady deals, black market activities and other forms of enrichment.

In the same provision of law, the behaviors are classified as “criminal activities” that damage the national economy and social stability. But the prosecutor, who is responsible for bringing criminal actions on behalf of the state, decided to encourage an administrative proceeding before initiating a criminal complaint.

In a fair criminal trial, Theophilus’s relatives would never have had to answer for the acts of others. The responsibility is individual. Moreover, the Penal Code, in force since 1987, provides that “the confiscation of property does not include . . . goods or items that are essential to meet the vital needs of the sanctioned or the relatives of his household.” Thus, housing cannot be seized.

The preferred implementation of Decree-Law 149 is the result of the subordination of the Attorney General’s Office to the State Council. This means that it must first comply with political instructions before it controls and preserves “socialist legality” and ensure strict compliance of laws

The existence of this rule in the Cuban legal system far from protecting the general welfare, destroys the trust and security that any legal system must provide. Its application violates the guarantees afforded to criminal defendants and renders citizens defenseless against the excesses of the government.

Lina Olinda Pedraza Rodríguez was appointed by the government as Minister of Finance and Prices, but is not qualified to administer justice. The powers conferred by Decree Law 149/94 are unconstitutional, and therefore arbitrary.

Since July 22nd, Antonio López Ávila and his family members have lived with the apprehension that at any moment police officers will forcibly evict them and destroy their home.

Laritza Diversent

Photo: Minister Pedraza Rodriguez is also a member of the Communist Party Central Committee, and Deputy for the Province of Villa Clara.

Translated by: Tomás A.

August 11, 2010

The Scene is Indeed Confusing / Laritza Diversent

Fidel Castro in Parliament, for the first time in four years

Before the formation of the current Council of State on February 25, 2008, Fidel Castro resigned his posts in that body. In a public address he explained that the state of his health no longer allowed him to hold “a responsibility requiring more mobility and dedication than I was physically able to offer.”

On July 7, 2010, after several months of absence from the media, Fidel Castro resurfaced noticeably recuperated.

The comments were quick to follow: “Does he intend to reclaim his duties and return to power?” On the streets, people speculated that he was attempting a “slap-on-the-hand coup” against Raúl Castro, after he had relinquished the country’s leadership to him on July 31, 2006 for health reasons.

Apparently, his younger brother highly respects him, especially since he is, at the moment, the man who has the responsibility to lead the nation.

It’s possible that Fidel Castro misses his position as number one. But time does not pass for the sake of passing and the current political scene does not allow reversal, rendering any action risky.

The latest elections for candidates to the National Assembly of People’s Power revealed a 20 percent voter abstention, an officially recognized figure and unimaginable in past elections. This is evidence that popular discontent is now escaping control by the State.

Someone asked me if during the 7 August extraordinary session of the National Assembly another announcement calling for elections could have been agreed to, newly appointing Fidel Castro as Head of State.

The idea, from a legal point of view, seems ridiculous. First, a strong reason would be necessary to justify a change in the country’s leadership. Second, if said reason were found, that announcement would expose an internal power struggle. However, in Cuba anything can happen.

It’s certain that the shadow of the “compañero who reflects,”* generates doubts as to who truly governs and decides in this country. However, his aged image, incoherence and mental gaps show him as inept for leadership. The perception is general and I don’t think the majority of the population would endorse his return, although I don’t doubt it could be imposed.

The “messiah” sends us a sly little message: “Careful, I’m still in the game.” He’s trying to gain some space among the ambitious youth who wish to gain trust and positions in the highest spheres of power.

I suspect that behind his figure the interests of other characters are hidden and that his sudden appearance is related to the unprecedented dialogue with the Church and the release of 52 political prisoners from the Black Spring of 2003.

The doubt arises as to whether the government will truly undertake measures to improve the human rights situation on the island, that would merit a change in policy from the European Union and Washington. Incidentally, the reappearance of the ex-leader puts Raúl’s authority and capacity to make decisions and undertake changes within the system in doubt.

The struggles for power are unseen, but they are felt. The internal performance of the repressive entities is erratic. On the one hand they repress, with intimidation and arbitrary detentions of the opposition and independent journalists; and on the other hand, on occasion they display a tolerance that begs the question: who’s giving orders? The Cuban political scene is indeed confusing.

Laritza Diversent

Photo: AFP

*Translator’s Note: “compañero who reflects,” is a reference to Fidel Castro’s regular columns in the newspaper, entitled “The Reflections of compañero Fidel,” with the simple title of “compañero” — or “comrade” — intended to carry its own message.

Translated by: Yoyi el Monaguillo

August 22, 2010

Government Measures Raise People’s Expectations / Laritza Diversent

Self-employed

In his most recent speech, General of the Army Raul Castro Ruz announced a series of measures affecting the employment rights of the Cuban people. The most far-reaching of all was the extension of self-employment.

According to Castro, who is also President of the Councils of State and Ministers, the government agreed to extend the practice of self-employment as an alternative employment, and eliminate several existing prohibitions against the granting of new licenses.

The rise of individual economic activity on the island began in 1989 with the collapse of the socialist sphere, as a government measure to readjust the economy, given the lack of credit and the inability to obtain the cooperation of international financial organizations. Starting in 1997, the state began restricting licensing, to reduce the independent economic sector.

At present, self-employment is subject to control and supervision by the government, which considers it a supplement to state activity. It is done at the municipal level, on a case-by-case basis.

Permits are renewable every two years. They cover activities of producing and marketing goods and services, at the address of the permit-holder, and can only be offered to private individuals.

It is prohibited to conduct on the island any activity of producing, processing, or selling goods or services without authorization. The authorized activities are specifically listed in Resolution No. 9/2005, “Regulations on the exercise of self-employed person,” by the Ministry of Labor and Social Security. The law approves 118 activities, and authorizes the granting of new licenses for only 40 of them.

The law requires the self-employed to buy the raw materials in the retail market in convertible currency, but to offer their products and services for sale in national currency. This requirement impedes the development of private economic initiative on the one hand, and on the other it promotes the rise of lawlessness. The self-employed turn to the black market in order to continue their business and keep their license.

At the same time Castro, the Second Secretary of the Communist Party of Cuba, announced that the Council of Ministers approved the implementation of a system of taxes on this type of activity, presumably to ensure that the newly self-employed contribute to social security, pay personal income and sales taxes, and that those who hire workers pay a tax for the use of the workforce.

The measures – especially those concerning the marketing of new products and flexibility in hiring labor – have generated an expectancy among the populace. Their implementation will require the government to reform the legal system: the criminal law that prohibits the employment of labor or the use of methods or materials of illicit origin, also revokes licensure.

Laritza Diversent

Translated by: Tomás A.

August 17, 2010

The Powers of the Minister of Finances and Prices are Unconstitutional and Arbitrary / Laritza Diversent

The Minister of Finances and Prices, Lina Olinda Pedraza Rodriguez, ordered the execution of a process of confiscation against Teófilo Roberto López Licor, 66, based on Legal Decree 149 “on the confiscation of goods and accumulations made through improper enrichment,” known as the Law Against the Newly Rich and its regulation, Decree No. 187, both from 1994.

The state representative demands the confiscation of the goods and income obtained by the López Licor family, during a period of ten years (1998 to 2008). However, the resolution dictated in July 2009 is based on confiscatory record 1349, which does not specify the year of filing. This is a detail that creates doubt concerning the application of the legal decree with retroactive effects, on behalf of an organ of the state.

According to the Constitution of the Republic, non-criminal laws have retroactive effects when they deal with a matter of public interest or utility. Decree Law 149 is of an administrative character and in its operation does not mention that particularity.

The process also affected Pompilio López Licor, 61, and Teófila Elsa Ávila Gutiérrez, 60, brother and wife of Teófilo Roberto, who along with his son, Antonio, were named by the Ministerial decision, as third parties who benefited from the unjust enrichment.

The national deputy for the province of Villa Clara said that the three houses, two cars, a motorcycle and several other items, including appliances exchanged under the “Energy Revolution,” were obtained and legalised by Teófilo, and hidden through subterfuge, under the names of his relatives, without specifying which acts were illegal.

However, no legal action has been directed against members of the Municipal Housing Management of Arroyo Naranjo, in the City of Havana, who acted in the legalisation of the assets and property mentioned.

The confiscated goods amounted to 2,347,834 Cuban pesos and 24 cents. The value was certified by experts who did not specify, as they are legally required to, how the appraisal was carried out, or what the parameters were that were considered, nor the factors that were taken into account in the estimate.

López Licor is self-employed in the regulated activity No. 646 of “maker-seller of food and soft drinks at a fixed point of sale” and has documents from the income tax office substantiating an income of more than 500,000 Cuban pesos.

Teófilo Roberto can also establish receipt of 18,000 convertible pesos (CUC), 450,000 Cuban pesos (CUP), as received remittances from the United States from six brothers and a son living in that country.

However, the Central Committee member of the Communist Party of Cuba, Pedraza Rodriguez, dismissed the evidence provided by López Licor. He argued that the self-employed workforce engaged and the bank documents did not prove that he had actually received the money. The law considers it criminal to use labour that is not family. However, against López Licor, the penalty is not imposed for that reason.

The defendants appealed against the ministerial decision through the Reform Appeal before Pedraza Rodriguez himself, who declared it to be without merit, confirming his decision, in October 2009. On June 22, they appealed to the Head of Finances and Prices, the start of a special review procedure. However, the execution of the penalty of confiscation is not interrupted, although they have not exhausted all the avenues for appeal.

Decree-Law 149 places in a state of helplessness those affected by it by preventing access to the courts for justice against an act of the administration that is harmful. However, the Constitution of the Republic states that “the confiscation of property is applied only as a punishment by the authorities in cases and procedures determined by law.” The Penal Code applies as a specific penalty and accessory for a crime.

However, the Prosecutor, who is responsible for the exercise of public prosecutions on behalf of the state, decided to undertake an administrative proceeding before activating the court for the commission of crimes. In a criminal trial, the relatives of Teófilo Roberto never would have been responsible for the acts of others. The responsibility is individual.

The Cuban Penal Code, in force since 1987, provides that “the confiscation of property does not include … the goods or items that are essential to meet the vital needs of those sanctioned or their close relatives.” Therefore, in criminal proceedings, housing can not be seized.

The validity of this rule in the Cuban legal system does not protect general interests, destroying the trust and security that should surround the whole legal system. Its application violates the legal and penal guarantees offered to citizens and leaves them defenseless against the excesses of the government.

Lina Olinda Pedraza Rodríguez, Minister of Finance and Prices, claimed in her decision that the seized items “are not the result of honest work.” However, the Cuban Civil Code defines unjust enrichment as the transfer value of an estate to another, without legitimate cause. The Economic Control Minister was appointed by the government but is not qualified to administer justice. The powers under Decree Law 149/94 are unconstitutional and arbitrary.

Laritza Diversent

Translated by: CIMF

August 16, 2010

A Court Summons the Minister of Justice / Laritza Diversent

On the 15th of July the second chamber of Civil and Administrative Law of the Provincial Court of the City of Havana summoned the incumbent Minister of Justice, María Esther Reus González, in the matter of the lawsuit filed by the Cuban Law Association (CLA)for denying their request for certification, a step that is indispensable for the legalisation of this organisation of independent lawyers.

The Cuban Law Association is an independent NGO (Non-Governmental Organisation). It was founded in October 2008 and provides legal advice to citizens on a non-profit basis. On three occasions State Security suspended courses on Cuban laws offered to the general public by the Association, which also seeks to increase the public´s awareness of the legal system.

The Registry of Associations at the Justice Ministry didn’t certify if there was another NGO in the country with the same name and purpose as the CLA in the time between April 2009 and March 2010. The independent lawyers brought the matter to the court after the Minister in charge of the Registry ignored an administrative appeal against its decision, made on the grounds of violation of procedure.

The lawsuit brought on June 24 was filed by the Court on the 29th. A week later the judge, Alfaro Guillén, and the lay judges Núñesz Valdés and Figueredo Ramos responded to the lawyers with a delay due to the Chamber´s excessive work load, demanding that they changed the wording of their motion´s terms.

The Court considered it inadmissible that the attorney Wilfredo Vallín Almeida, president of the Cuban Law Association, is acting on behalf of a legally unrecognised entity. The Cuban legal system considers any group not inscribed in the Registry of Associations of the Minister of Justice to be an “illicit association.”

As a matter of fact, the Associations Act (Law 54 from the 27th of December 1985) and its bylaws do not impose any formal requirements for the establishment of an association: the interested parties assemble in order to pursue a common goal and request their recognition as a legal entity by the State.

The writing of the judges demanded that the attorney Vallín bring the lawsuit as a private person and that the terms of the petition be changed to reflect the fact that the Justice Ministry has not responded to the request for certification. The judges declared the formulation “refusal to grant authorisation for the establishment an an association” used in the wording of the petition to be incoherent.

It is the the first time that a dissident organisation sues a representative of the government. This is an event without a precedence in the last fifty years of Cuban jurisprudence.

Laritza Diversent

Note: See also “The lawsuit is getting ahead”: La demanda prosperó.

Photo: The Cuban Minister of Justice during her participation in a session on human rights in Geneva, Switzerland.

Translated by: undef

August 14, 2010

Beyond the Horizon / Laritza Diversent

The comment by a reader of mine, Sergio, attracted my attention. He asked: what is the reason that keeps preventing the opposition in Cuba from growing strong?

According to his writing, Sergio left the island a short while ago and still has fresh memories of the disagreements and fears here. He thinks that the people are still being paralysed despite recognising that the political and the economic systems are failing, because they dread something worse. Just like the popular sayings: “To jump from the frying pan into the fire” or “Better the Devil you know than the one you don’t.”

The commentator asserts that the historical leadership is still in power, firstly because the opposition cannot offer a model for the future development of Cuba, and secondly, because the malicious propaganda machinery, the indoctrination and the disinformation have demonised the concept of capitalism to the point that it is perceived as the apocalypse, exemplified by the social model of North America: “TOTAL liberty, the State is not responsible for exercising control… and things work if they are private.”

He suggests to the dissidents that if they propose “the American way” they will find it hard to convince the rest of the Cubans, “who don’t want to shift constantly from the extreme Stalinist left to the far ‘Republican’ and neoliberal right… Cubans want the best of capitalism and the best of socialism.”

To illustrate his thoughts he presents two proposals and economic models for the opposition groups:

His first proposal: “We are THIS group, here is my programme: Once democracy is achieved we want a liberal Cuba where the free enterprise and market forces set the guidelines of the society, the government lets the market operate on by its own rules, everyone has a health insurance if he or she wants medical care, and everything or almost everything is private property, because the State is not competent.”

Later he asks: “What do you do if you don’t have enough to pay for your father’s cancer treatment?” “We know that health is the one most precious things and therefore it is what concerns people most,” he argues. On this point I agree with Sergio, in a future full of changes not all of us are going to be prosperous entrepreneurs.

I agree once again when he claims that “the opposition has to focus, and each group, independent of the common goal (the end of the dictatorship and establishment of democracy) has to present its own detailed plan.

Unfortunately, the majority of the opposition groups within the Island do not seem to grasp the idea of a political programme, occasionally they don’t understand what this is. It is also hard to know for sure what is the ideology they profess. Sometimes I have the impression that they associate the term liberal with liberation, hence it is difficult to know what is the model or alternative for the government that they offer to the Cuban public.

Second proposal: “We are THAT OTHER group and this is my programme: When Cuba is to be free we want full liberty and support for the free enterprise, but subject to economic, financial and fiscal regulations that prevent those unbalances in the system that end up with the taxpayers footing the bill. There will be a serious fiscal system in order to create a social security covering the basic needs: labour rights, free and universal medical care, education facilities. The State will cease determining the degree entrepreneurial activity…, but it will never let the course of the country’s economic development to be set by the market alone. We’ll have a sober economic planning based on industrialisation and R&D (Research and Development) as a guarantee for sound and sustained economic growth… and independent of cyclical activities like the real estate business or tourism that are a feast today but famine tomorrow.

Sergio insists on the need to explain that “there is a form of capitalism that respects the right of the people to have their business, from a cafeteria to a designer company and even a multinational metallurgical enterprise… to earn millions of euros and to be millionaires…, and all of this being Cubans in Cuba, achieved with their ingenuity and work, at the same time enjoying guaranteed free and universal medical care and education for their whole family… and everyone pays into social security… and moreover, a right to attend colleges and universities and private health care for those who wish it.”

The commentator does not believe that wrongs in Cuba are due to socialism, but rather to FIDELISM. “Our problem is Fidel and his dictatorship, the dictators are neither communists nor capitalists,” he argues. He doesn’t like the American model either and thinks that it is time for the Cubans to “look closely at well developed models that are socially fair if not egalitarian.”

He advises the dissidents to “PULL THEIR HEADS OUT OF MAIMI and take a look at Germany and the rest of Europe (excluding Spain, Portugal and Italy), it does not matter whether the government is left or right, it still makes some difference, but to a great extent they have reconciled very well liberty and economic development with a high standard of welfare and social justice.”

“If there is a group out there that has a programme with these ideas… I’ll sign up together with my family, otherwise I support them regarding the common goal to get rid of the Castros… but I will give them my neither my vote nor my confidence… and I think that the majority of the Cubans in Cuba will feel this way,” he finishes.

I also think that from now on it is necessary to explain WHAT DOES THE OPPOSITION OFFER TO CUBANS. The economic model ought to be chosen by all in free elections and will be put in place by the political group that manages to see BEYOND THE HORIZON.

Laritza Diversent

Translated by: undef
undef@rocketmail.com

August 15, 2010

Customs Back in Action / Laritza Diversent

Postal and Shipping Customs, part of General Customs of the Republic (AGR), imposed an administrative penalty against me, through Confiscation Order No. 978, issued on June 8, 2010, for a shipment sent from the United States of America.

On July 13, I received an envelope sent by the Customs authority through the Cuban Postal Service, which contained the order and four Records of Retention and Notification. The documents included a list of the items seized.

In the order, Raimundo Pérez García, Customs Enforcement Inspector, confiscated the items – mostly cleaning, toiletry, and office supplies – claiming that upon physically inspecting the shipment, he found that they offended the general interests of the nation, constituting a violation of the provisions of Resolution No. 5-96 of the Chief of the General Customs of the Republic.

Among the products mentioned were an MP3, a camera, water purifiers, a pencil sharpener, balloons, pens, pencils, markers, several note pads, crayolas, laundry soap, a toothbrush and toothpaste, deodorant, towelettes, antiseptic and sanitary pads, elastic bandages, and rolls of tape.

These are widely-used, everyday domestic products, and are on sale in state-owned commercial establishments and hard-currency stores within the country.

The customs order issued by Pérez García, Customs Enforcement Inspector, is arbitrary. This official did not explain what criteria he took into account to determine that the items seized offended the general interests of the nation.

Resolution No. 5 of the AGR, in force since 1996, allows the application, within the national territory, of the International Convention on the Suppression of the Circulation and Trafficking of Obscene Publications and traffic.

It prohibits the importation by shipment of “any object whose content is considered contrary to morals and good customs or that goes against the general interests of the nation.” It further provides that the seized products be delivered to the appropriate agency of the Ministry of Interior.

The government regulation was used in previous months in the seizure of shipments from abroad to various dissidents, including Aini Martin, the independent press correspondent, Yusnaimy Jorge Soca, the wife of the physician and prisoner of conscience Darcy Ferrer Dominguez, and Yoani Sanchez, the author of the blog “Generation Y”.

Laritza Diversent

Translated by: Tomás A.

August 14, 2010

Island Authorities Serve Notice That They Will Not Stop The Repression / Laritza Diversent

Following the release of 21 political prisoners, the Cuban government insists on reminding the dissidents and independent journalists that they will continue their repressive policies. On the morning of this past August 9th, Military Counterintelligence and State Security agents summoned independent journalist Iván García for an interview.

The official summons is one of the means used by law enforcement agencies to intimidate dissidents. Generally, the authorities do not comply with the legal requirements for carrying out this judicial undertaking. In their conduct they are acting on their own and in disrespect of the law.

The officials claim that the reporter “discredited” military entities in one of his articles published in the Spanish newspaper El Mundo. To defame, denigrate, or disparage the institutions of the Republic, the mass organizations or social policies of the country, or the heroes and martyrs of the homeland, is considered by the criminal code to be a crime against public order. But they preferred to give an official warning.

The record of official warning, in the legal system, is a cumulative precedent that justifies the future implementation of a judicial procedure for pre-criminal dangerousness for antisocial behavior. Penalties can reach up to 4 years imprisonment, and this is one of the criminal charges most frequently used against people who disagree.

General of the Army Raul Castro, in his speech on August 1st regarding the release of 52 political prisoners convicted in 2003, warned that “there will be no impunity for the enemies of the fatherland.” García believes that officers who attended were given extended words of the President of the Councils of State and Ministers.

This past August 5th, the day of the 16th anniversary of the “Maleconazo” – the popular uprising that preceded the exodus of 1994 – police and State Security agents stopped a number of dissidents near the Malecon as they entered the U.S. Interests Section in Havana, Cuba, the only place that offers free internet to Cubans.

Obviously, the government has made it clear that they expected a different reaction from the European Union and Washington with regard to the recent humanitarian gesture. Maybe it is sending a message to remind them that, at any time and for any reason, they can once again fill the prisons with political prisoners.

Laritza Diversent

Translated by Tomás A.

August 10, 2010

Liberation or Exile? (II)

To speak of liberation — in this case of the release of prisoners — through a third-party also has advantages. Mainly because neither the Catholic Church in Cuba nor the representative of the Spanish state have the power to say anything about the legal means for implementing it.

Analyzing the current situation, the criminal responsibility of prisoners of conscience, according to the criminal law, could be extinguished by amnesty, pardon, or acquittal in review proceedings.

If they really intended to liberate, the Council of State would issue an official note, at the proposal of its President, who is in turn the Head of State and Government of the Republic of Cuba, pardoning all prisoners arrested and prosecuted in 2003.

The National Assembly could also do its part. The supreme organ of the Cuban State could declare at its meeting to be convened on August 1st a general amnesty for all political prisoners. This power is recognized by the Constitution of the Republic.

Both state bodies could do even more. The parliament can declare the 1999 Law No. 88 (“On protection of national independence and the economy,” also known as the “Gag Law”) unconstitutional. This is the legal provision under which the group of 75 dissidents was prosecuted, which violates and restricts the right of expression, opinion and information.

The Council of State also has the power to order the Supreme Court to undertake a special review procedure and acquit those accused in the “Black Spring” of 2003. Constitutionally it has the power to issue instructions to that judicial body.

The analysis leads to one conclusion: the fact that they talk about liberation, but not about the actions through which it must be legally formalized, suggests that the Cuban government intends to cover up the forced exit from the country of the 52 political prisoners – an illegitimate act and a violation of the rights of these people.

No government action has legal sanction to force a citizen to leave the country. Cubans cannot be exiled from their own land.

Laritza Diversent

Translated by: Tomás A.