Shadowy Scenario

The release of 52 political prisoners, who had been sentenced in 2003 to between 6 and 28 years, caused joy on the one hand, and skepticism on the other. The Archbishop of Havana issued a communique, and Miguel Angel Moratinos, Foreign Minister of Spain, gave statements to the press. What is missing is the official government announcement on the matter. Clearly the scenario remains shadowy.

According to Moratinos, there is no reason to continue Europe’s “common position” after the releases. He said he felt satisfaction from “the possibility of definitively settling the question of the prisoners,” when in fact this resolves only a circumstantial situation. The issue of human rights on the island is not summed up by the release of political prisoners. Not at all.

This demonstrates some naivety by the Foreign Minister of Spain. Or perhaps he is only concerned with resolving the most immediate problem, which benefits only the government of the island. So far the existing leadership has made no public commitment and has given no assurance of compliance.

It is no secret that the Spanish minister requested an extension until September for his European Union counterparts to decide whether to reaffirm or repeal the Common Position, which since 1996 has conditioned its relationship with Cuba to progress in human rights.

Does the future of Cubans not matter? What will happen afterward if the “Common Position” is modified because of this gesture by the Cuban government? This should not be blurred by the release process. I recognize it is a positive step, but it in no way represents an improvement in matters of human rights. Not while laws that criminalize the exercise of freedom of expression and opinion are in force.

Moreover, it is suspicious that a state, constitutionally declared to be secular, issues it orders through the Catholic Church. Even more that a representative of a foreign state becomes spokesman for the government on the island, whose foreign policy is uncompromising on the principle of state sovereignty and non-interference in internal affairs.

Laritza Diversent

Translated by: Tomás A.


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Complaint Against the Justice Minister Advances

On July 7, The People’s Provincial Tribunal of Havana responded to the group of independent lawyers who filed suit against the Justice Minister, Maria Esther Reus González.

In the response (which was delayed because of a backlog in the chamber) the judge, Alfaro Guillén, Esq., and the lay judges, Núñez Valdés and Figueredo Ramos, required the members of the Cuban Law Association (AJC), to modify the terms of the judicial petition, within 10 days.

The court found it “improper” for Wilfredo Vallin, Esq., president of the organization, to act in the name and on behalf of a legal entity that is not currently constituted. The notice requires the lawyer bringing the action to proceed in his own name.

The Cuban legal system will not recognize an association that does not appear on the rolls of the Register of Associations. The law provides penalties of incarceration for up to three months against a person enrolled in a non-registered association. The punishment is tripled for the promoters or directors of an illegal association.

For its part, the Law of Associations (Law 54 of December 27, 1985) and its regulations, does not impose any legal formality for creating an association. It is sufficient that interested people form a group to achieve a goal. Then they can ask to be recognized by the state as a legal entity.

The highest court of justice in the capital also ordered that the facts of the complaint be reformulated. It does not accept the term “denial of authorization for Constitution of Association”, considering it inconsistent. It asserts that the Justice Ministry (MINJUS) did not respond to a request for certification.

On April 7, 2009, the AJC asked the Register of Associations of MINJUS to certify that no non-governmental association (NGO) existed in the country with the same name and purpose as the association of attorneys. The document is essential to continue the legal process for setting up the guild.

The state institution did not issue the certification. In March 2010 the group renewed its request and received no response. The lawyers appealed to the Minister, Reus González, raising a complaint for breach of the required legal formalities, which also was ignored.

On June 24, the lawyers filed a complaint with the Second Chamber of the Civil and Provincial Administrative Court in the capital, against the Minister of Justice, for denial of the authorization (by administrative silence) for the legal constitution of the guild.

The legal petition was filed in the Court on June 29, under case number 338 of 2010. It seeks to challenge the decision of the Department of Associations of MINJUS. It is the first time that a dissident organization has brought suit against a government representative.

Laritza Diversent

Translated by: Tomás A.


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Legalisation of Repression

In the second half of April 2003, 75 dissidents were arrested and sentenced after summary trials. These cases were processed under Law No. 88, “For the Protection of the National Independence and of the Economy of Cuba.” The dissidents received sentences varying between 6 and 28 years of imprisonment. Internationally, these events were called “The Black Spring of Cuba.”

According to article 2 of this law (also known as “The Gag Law”), it has a special character and takes precedence over other criminal laws adopted prior to it. This gives rise to a suspicion: How do the authorities decide whether to apply this law or the Penal Code (PC) when both pieces of legislation deal with the same types of crimes, have equal rank and serve the same objectives?

The decision of which norm to apply is left to the discretion of the public prosecutors and the judges and depends on the political will to imprison a person who could not be found guilty if judged under the PC. Meaning that his or her conduct does not fall under any of the definitions of crimes established in the PC.

From both a technical and legal point of view, the elements of the crimes described in “The Gag Law” are formulated vaguely and are designed to sanction any behaviour that, according to the authorities, supports or facilitates the disturbance of the internal peace, seeks to destabilise the country or to destroy the “Socialist State” and the national independence.

In contrast to it, the PC describes types of behaviour that violate or pose a threat to the public life. From this point of view it is the damage to the society, whether potential or actually inflicted, that determines what type of conduct ought to be sanctioned criminally. This means that all citizens are involved in assessing the severity of a given circumstance, precisely because they are the ones affected by it. The judicial system should thus protect the citizens instead of repressing them.

It is inadmissible to make use of the criminal law in order to subjugate citizens and to impose a certain ideology. In other words, the rejection of a given philosophy (communist, liberal, etc.) is not an adequate argument justifying a sentence. There has to be damage to the society.

The punishment of the 75 opponents of the regime, sentenced in accordance to Law 88, showed how its existence serves to legally justify repression under the cover of an alleged public interest. It’s selective application intensified its effectiveness as a warning to others. Indirectly, the regime influenced the rest of the dissidents within the country. It demonstrated its power as well as the lengths it is willing to go to in order to preserve it.

Laritza Diversent

Translated by: undef@rocketmail.com

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The Gag Law / Laritza Diversent

The Cuban Penal Code (CP) characterizes and punishes behavior that goes against the security of the state, the economy, public policy, etc. But in a different area of the law there is another criminal provision, which carries the same weight and promotes the same goals: Law No. 88, “Protection of National Independence and the Economy,” popularly known as “the Gag Law.”

But these laws differ in the way their rules are drafted. Law 88 is more confusing and imprecise, which makes it hard to interpret. For example, the Penal Code prohibits conduct that goes against the legal order: public disturbance, incitement to crime, etc. In each of these sections the legislature made clear the factual situation that describes the crime:

“Anyone who . . . yells out an alarm, or utters warnings of a common danger . . .” (Public Disorders, Section 200.1 CP); “A person who provokes squabbling and bickering . . .” (Public Disorders, Section 201.1 CP); “A person who . . . publicly incites another to commit a particular offense . . .” (Incitement to Commit a Crime, Section 202.1 CP).

The character of places where the criminal activity occurs is also explicit: . . . “in public places, shows, or large gatherings . . .” (Public Disorders, Article 200.1 CP); “. . . in establishments open to the public, public transport vehicles, social circles, shows, family or public celebrations, or other events or places where many people gather . . .” (Public Disorders, Section 201.1 CP).

Article 8 of Law No. 88 (Part 1) sanctions “everyone . . . who intentionally disturbs the public order . . .” and “everyone . . . who promotes, organizes, or encourages disturbances to the public order referred to in the previous section” (Part 2).

Article 8 says nothing about the nature of the places where the conduct alleged to be socially dangerous occurs. Nor does it describe the possible acts that must occur to be considered disturbing the public peace. The offense is not defined.

The authorities may consider any action to be a disturbance of public order. This creates a climate of insecurity for citizens subject to the rule.

From this analysis we can derive a lesson and discover one of the strategies of the Cuban political class: drafting laws based on undefined and highly abstract fact patterns makes the interpretation and application of the Gag Law severe and leads to arbitrariness, supposedly in the public interest.

Translated by: Tomás A.

The Gag Law

The Penal Code (CP) characterizes and punishes behavior that goes against the security of the state, the economy, public policy, etc. But in a different area of the law there is another criminal provision, which carries the same weight and promotes the same goals: Law No. 88, “Protection of National Independence and the Economy,” popularly known as “the Gag Law.”

But these laws differ in the way their rules are drafted. Law 88 is more confusing and imprecise, which makes it hard to interpret. For example, the Penal Code prohibits conduct that goes against the legal order: public disturbance, incitement to crime, etc. In each of these sections the legislature made clear the factual situation that describes the crime:

“Anyone who . . . yells out an alarm, or utters warnings of a common danger . . .” (Public Disorders, Section 200.1 CP); “A person who provokes squabbling and bickering . . .” (Public Disorders, Section 201.1 CP); “A person who . . . publicly incites another to commit a particular offense . . .” (Incitement to Commit a Crime, Section 202.1 CP).

The character of places where the criminal activity occurs is also explicit: . . . “in public places, shows, or large gatherings . . .” (Public Disorders, Article 200.1 CP); “. . . in establishments open to the public, public transport vehicles, social circles, shows, family or public celebrations, or other events or places where many people gather . . .” (Public Disorders, Section 201.1 CP).

Article 8 of Law No. 88 (Part 1) sanctions “everyone . . . who intentionally disturbs the public order . . .” and “everyone . . . who promotes, organizes, or encourages disturbances to the public order referred to in the previous section” (Part 2).

Article 8 says nothing about the nature of the places where the conduct alleged to be socially dangerous occurs. Nor does it describe the possible acts that must occur to be considered disturbing the public peace. The offense is not defined.

The authorities may consider any action to be a disturbance of public order. This creates a climate of insecurity for citizens subject to the rule.

From this analysis we can derive a lesson and discover one of the strategies of the Cuban political class: drafting laws based on undefined and highly abstract fact patterns makes the interpretation and application of the Gag Law severe and leads to arbitrariness, supposedly in the public interest.

Translated by: Tomás A.


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Freedom of Expression in Cuban Legislation

Freedom of expression is internationally recognized in the Declaration of Human Rights (Article 19). These prerogatives include being safe from oppression due to expressing an opinion, conducting research and receiving and spreading information, regardless of borders, by any means.

Article 53 of the Cuban Constitution <em>gives citizens the right to freedom of speech and the press in accordance with the aims of the socialist society. </em>Under this provision, <em>material conditions for their exercise are given by the fact that the press, radio, television, movie theaters and other means of mass information belong to the state or society and could not, in any case, become private property, which assures their use exclusively for the use of the working people and for the benefit of society. </em>Lastly, it assures that <em>the law regulates the exercise of these freedoms.</em>

However, the constitutional protections of freedom of expression, despite the fact of being a judicial guarantee, is not sufficient to affirm that in Cuba it is exercised and enjoyed.

First:  the article being analyzed is technically and judicially deficient.  The legislator confused the right with the material guarantee necessary for its application.  A useless condition, given the nature and characteristics of this kind of freedom.  The same one devotes spaces that the state does not have to create, because they are innate to humans, in virtue of what only has to be respected and protected.

Second:  The fact that the means of social communication are in the control of the State does not constitute a guarantee of the application of this right.  In Cuba, the human prerogatives, acknowledged by the Constitution of the Republic, cannot be exercised against the existence and means of “The Socialist State.”  It means that its legal application is severely limited when rights cannot be curtailed. They solely admit these minimal limitations, only when regarding the function of public order.

Third: According to the Constitution of the Republic, freedom of speech and press should be developed through a law, which is the only way of applying and defending this right.  The National Assembly, the main organ of the State with legislative authority, consciously ignores the mandates expressed by this Magna Carta.  It still does not adopt a law that regulates this most important right in ordinary legislation.

Fourth: The National Assembly passed Law 88, “Of Protection of National and Economic Independence”, a normative penal device that impedes citizens from expressing and spreading their opinions in regards to political, social, and economic practices of the government.

This law, also known as “The Gag Law”, sanctions every person who seeks and provides information, accumulate, reproduces, and spreads materials that criticize the political system, and any person who collaborates with such ideas, via radio stations, TV stations, newspapers, magazines, or other means of foreign communication.

Translated by Raul G.

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Freedom of Expression in Cuban Legislation

Freedom of expression is internationally recognized in the Declaration of Human Rights (Article 19).  These prerogatives include being safe from oppression due to expressing an opinion, conducting research and receiving and spreading information, regardless of borders, by any means.

Article 53 of the Cuban Constitution gives citizens the right to freedom of speech and the press in accordance with the aims of the socialist society. Under this provision, material conditions for their exercise are given by the fact that the press, radio, television, movie theaters and other means of mass information belong to the state or society and could not, in any case, become private property, which assures their use exclusively for the use of the working people and for the benefit of society. Lastly, it assures that the law regulates the exercise of these freedoms.

However, the constitutional protections of freedom of expression, despite the fact of being a judicial guarantee, is not sufficient to affirm that in Cuba it is exercised and enjoyed.

First:  the article being analyzed is technically and judicially deficient.  The legislator confused the right with the material guarantee necessary for its application.  A useless condition, given the nature and characteristics of this kind of freedom.  The same one devotes spaces that the state does not have to create, because they are innate to humans, in virtue of what only has to be respected and protected.

Second:  The fact that the means of social communication are in the control of the State does not constitute a guarantee of the application of this right.  In Cuba, the human prerogatives, acknowledged by the Constitution of the Republic, cannot be exercised against the existence and means of “The Socialist State.”  It means that its legal application is severely limited when rights cannot be curtailed. They solely admit these minimal limitations, only when regarding the function of public order.

Third: According to the Constitution of the Republic, freedom of speech and press should be developed through a law, which is the only way of applying and defending this right.  The National Assembly, the main organ of the State with legislative authority, consciously ignores the mandates expressed by this Magna Carta.  It still does not adopt a law that regulates this most important right in ordinary legislation.

Fourth: The National Assembly passed Law 88, “Of Protection of National and Economic Independence”, a normative penal device that impedes citizens from expressing and spreading their opinions in regards to political, social, and economic practices of the government.

This law, also known as “The Gag Law”, sanctions every person who seeks and provides information, accumulate, reproduces, and spreads materials that criticize the political system, and any person who collaborates with such ideas, via radio stations, TV stations, newspapers, magazines, or other means of foreign communication.

Translated by Raul G.

Using the Criminal Law for Political Purposes

In principle, States enjoy sovereign power, which they are able to express through the actions of their government bodies and the enactment of laws. The latter are the suitable instrument for exercising their right to prescribe crimes and penalties (the right to punish). But it is disturbing how the Cuban government uses the coercive force of criminal law for political purposes.

Supposedly, the criminal law and the activity of the coercive state apparatus should protect society in general. Their purpose is to prevent and suppress acts that injure or endanger fundamental interests that affect the lives of human beings. For example, protecting property against theft, and human life against acts committed against one’s person, etc.

The precarious economic situation of the nation determines in part that conduct which qualifies legally as crimes, may be welcomed, supported and tolerated by society. For example, theft in the context of labor relations with the state. In other cases, socially accepted behaviors are penalized for political reasons. The sale of goods between individuals is prohibited by law. Economic activities are the exclusive province of the Socialist State.

There are also actions that are not prohibited by law, but which are suppressed by law enforcement. For example, having an official address in a province other than the capital, and staying in the capital without authorization, can result in being detained for illegally being in Havana.

Carrying on critical journalism independent of the official media is another example of prohibited conduct that does not represent a danger to society. Law 88 of February 16, 1999, “On the Protection of National Independence and the Economy,” popularly known as “the gag law,” punishes those who publish their opinions by any means – on radio and television stations, in newspapers, or in magazines or other foreign media.

It is clear that the repressive apparatus of the Cuban state has deviated from its fundamental objective and the principal reason for its existence. While Cuban society is sinking into decay, it uses the right to punish to suppress and persecute conduct perceived as undesirable by those who wield political power.

Laritza Diversent

Translated by Tomás A.

Judicial Power in Cuba

In Cuba, the power to administer justice belongs to the People’s Courts. The Supreme People’s Court (TSP), under Article 121 of the Constitution of the Republic, is the highest judicial authority and its decisions are final. But it is not recognized as the highest organ of “the People’s Power.”

Not having the status as the highest organ of the State means that the TSP does not have sole and exclusive jurisdiction to administer justice. It means that another state body may exercise those functions. For example, the general and compulsory interpretation of current laws is the prerogative of the State Council (Paragraph Ch of Article 75 of the Constitution of the Republic).

The defense of the Supreme Law is a function of the National Assembly. The parliament decides the constitutionality of the laws that it issues, the legal decrees, decrees and other general provisions (Paragraph C, Section 75 of the Constitution of the Republic). They also revoke judicial decisions that contradict the Constitution (Paragraphs Ch, R, and S of Article 75).

The Council of State has this same authority (Subsection O of Article 90) regarding the decisions of lower bodies. They can even suspend the decisions of the Council of Ministers and those of the local assemblies, when they do not comply with the constitution or laws.

Consequences:

  • The legal system does not have a Court of Constitutional guarantees or of Constitutional jurisdiction;
  • The judicial bodies cannot rule on constitutionality or unconstitutionality, to control and guide the actions of the government and the legislature;
  • Judicial power is void in Cuba, and with it the rule of law. Higher state bodies are immune and unaccountable for the excesses of government.

Laritza Diversent

Translated by: Tomás A.

Criticism Can Be a Crime (II)

Juan, a commentator, told me he had sent a “Down with Fidel” email to the newspaper Granma, knowing that it is a crime in Cuba. He asked me what sanction they would impose if they found out who he is.

First, I don’t believe that the Cuban authorities are going to pursue him for sending a message. If they can identify him (as a specific person with all his particulars), at a minimum, they will not let him enter the country. I am delighted for this person to know the Cuban criminal law.

The current criminal law protects leaders, officials, and state institutions against negative expressions and opinions of the citizenry. In other words, criticism in Cuba can be a crime.

The Criminal Code regulates various offenses to protect the honor of the people from general forms of defamation, slander, and insult.  But protection against disrespect is given exclusively to the authorities, over and above the crimes mentioned above.

The penalty is a fine or imprisonment of three months to a year to those who “threaten, slander, defame, insult, injure or in any way outrage or offend, verbally or in writing, the dignity or decorum of an authority, public official, or their agents or assistants, in the exercise of their duties or at the time of or because of them.”

The initial penalty against Orlando Zapata Tamayo was for committing this crime. A prisoner of conscience, he died in prison after 86 days of a hunger strike. He was sentenced to three years in prison, because the offense is aggravated when committed with respect to the President or members of the State Council of Ministers and the National Assembly. Thus, it is a common crime strongly tied to politics.

This means that mocking the comrade who reflects,* calling him stupid for his incoherent policies, or labeling the speaker of parliament a cynic, can be interpreted by the police as a crime of contempt.

Juan also asked me how the Cuban authorities could identify him. I don’t know. I am only warning him of the risks.

The commentator is right when he says that “Cuban criminal law is applicable to all crimes committed on national territory or aboard Cuban vessels or aircraft, wherever they are, except as otherwise provided by treaties signed by the Republic” (Criminal Code Article 4.1).

But he must carefully read Article 15.1 of the same law. The rule specifies that “the place of the commission of a crime is where the agent has acted, or has failed to carry out a required act, or where the effects are produced.”

Juan should remember that, although he lives in Spain, when he comes to the island he is treated as a Cuban citizen, and Article 5.1 of the Criminal Code states that “Cuban criminal law is applicable to Cubans and stateless persons residing in Cuba who commit crime abroad, if they are found in Cuba or are extradited. ”

The criminal laws, to our regret, are very general and abstract. Let me explain: they contain very broad descriptions of acts (part of the standard that describes the prohibited conduct). This allows the regime to interpret and apply them loosely and as they choose. In Cuba, the judiciary depends on instructions from the State Council. This is according to the Constitution of the Republic.

If Juan wants to be sure that he will not be prosecuted if he enters Cuba, I recommend that he wait for the time prescribed in the criminal code. That is, the time that starts running from the day he sent the message. According to the sanction that applies to the crime of contempt, it is three years (Criminal Code, Article 64.1, subsection d).

* Translator’s note: Fidel Castro writes a column in Granma that until recently was titled “Reflections of Comrade Fidel.”

Translated by: Tomás A.

Criticism Can Be a Crime (I)

Juan, one of the commentators of this site, is worried. He wants to know what would happen to him if they discovered that it was he who sent a “Down with Fidel” email to Granma, knowing that it is a crime in Cuba. He also asked about the risks involved in having a blog that criticizes the current prevailing system in the country.

We part on one point: I do not incite destruction of the “socialist state.” I do not do propagandize for war nor incite violence. I limit myself to opinions about the reality I live. I am aware that they can enforce the law against me and of the risks of going to jail. I assume my responsibility for this.

If a commentator outside of Cuba is afraid, what fate remains for me? My location and identification is very easy for the authorities. I give my name, address, telephone number, and I show my face. The only thing I haven’t given is my identity number. Here it is: 80060403759.

I’m not trying to be a martyr, I don’t want to be a hero. I want a future, to make plans, to have opportunities. I love peace and I have never taken up arms. I want to decide for myself what is good or bad for me. I simply exercise the rights that are recognized worldwide for all human beings.

Rights that the State has the obligation to respect and protect. No political group has the power to restrict or violate them, except in extreme situations, yet we have borne these conditions for over 50 years.

Yes I’m afraid; for this reason I say what I feel and think publicly. We have kept silent for too long out of fear of repression, prolonging its effects. But the result is the same whether you stay silent, whisper, or speak: they still control you, suffocate you, deceive you. It is time that we all lose the fear and speak the truth head-on.

Translated by: Tomás A.

Rooted Custom

Exactly how do minors become affiliated with the Committees for the Defense of the Revolution?

When you turn 14 years old they begin contacting you and requiring your presence at meetings of the organization and volunteer works. The parents (legal guardians) don’t have to consent or reject it. Consent is implied, there is no legal formality.

You do not need written parental permission. They (the parents) know that for their children to survive and to “be someone in life” they need the endorsements of each of the organizations. They also need  it. The experience is passed down from generation to generation.

They don’t object when they are asked to pay the price for their minor child. Even, as is often the case, when dad or mom are required to be present at the meeting. Keeping up appearances is a matter of necessity.

They know that the CDR can’t solve the problems of street lighting, the water supply, or the transport situation. But they are aware of how much damage can be done by a negative opinion from the chairman of the committee or the monitors.

The home of these “leaders” is an obligatory reference for the repressive agencies of the government: National Revolutionary Police (PNR), State Security (DSE), Department of investigative work (DTI). They are the ones that confirm to the state whether you own a building or car, or intend to leave the country. Their assessments affect the determination of a sentence.

Legal guardians are aware of the consequences of refusing to be quoted by the child or publicly declaring that they disagree with joining the ranks of the organization, because they are minors, and as such, have no capacity to act or economic independence.

It’s like a rooted custom. The organization brings together all the ‘mass’. As the body grows and renews itself be incorporated into the process. It is one of the tools used in building the new man.

It starts in pre-school with the Pioneer guards, and continues with the incorporation into the  many social and student organizations that the system has. In everything they ask you to be loyal to the “Revolution” and to sacrifice for it.

However, I can assure you that less than 1% of the members of the CDR know the rules of the organization. The important thing is your commitment, not what you are committing to. They don’t care if you consent to the rules, nor if you comply with the obligations assumed.

I watched as a daughter voted for her mother who was on a mission in Venezuela, at the request of one of the leaders of the committee, who wanted her polling station to have 100% turnout at the election. Also, as the mother of a judicially-declared incompetent, she paid her daughter’s fee in the CDR and as she (the daughter) exercised her right to vote.

The saddest thing of all is that most citizens are not aware of this situation. For them it is normal. We are a people with a general education, but legally illiterate.

Translated by: Tomás A.

Restriction and Violation of the Right of Association in Cuba

The establishment of an association in Cuba requires authorization from the Ministry of Justice. It lies in its discretion to allow or disallow a group of citizens to exercise its constitutional right of freedom of association. Its decision depends on an investigation of the legality and appropriateness.

The right of association is widely recognized as a basic individual civil right of utmost importance. Principally, because it provides protection against arbitrary state interference when people choose to associate with others. Furthermore it is an indispensable condition for the existence and functioning of a democratic society.

To protect these rights, the state is not only obligated not to interfere with their exercise, but, under certain circumstances, should take measures to encourage the effective exercise of this freedom. These rights could be restricted, but only under certain strict conditions, not at the discretion of government authorities.

The Cuban state not only grants discretionary power to the Ministry of Justice to authorize and register associations in accordance with the law. It also imposes relations of subordination and functional dependency upon authorized associations, thus unnecessarily restricting the freedom of action of Non Governmental Organizations (NGOs) within the Island.

A sine qua non for the constitution of an association is the adoption of rules stipulating its relation and functional dependence on a state organization. It is also subject to double taxation. The Ministry of Justice also monitors its activities and can impose administrative sanctions.

The gravest of all violations of this right, however, is committed when the authorities do not respond to dissidents who request legal recognition to operate as an NGO. To this is added the threat, commonly used by the organs of State Security against the opposition, of accusing them of the crime of illicit association.

The penal legislation provides a sanction of one to three months imprisonment for the person who belongs as an associate or affiliate to an association not inscribed in the register. The sanction is tripled for the promoters or directors of the same.

Faced with these violations there was not much that could have been done. However, a recent event, unprecedented in 51 years of the “Revolution,” showed that it is still possible to take legal action against the silence of the socialist administration.

An organization of independent lawyers called the Cuban Law Association (AJC), on June 24, filed a lawsuit before the People’s Provincial Court of the City of Havana against the Minister of Justice, María Esther Reus, for preventing them from exercising their legal right of association.

For the first time a dissenting organization brings a lawsuit before a court against a representative of the government.

Translated by: undef

The Procedure to Legalize an Association in Cuba

After a group is formed, it submits an application to the Registrar of Associations of the Ministry of Justice for a certificate stating that no other official or non-governmental organization (NGO) exists in the country with the same name or the same purposes as the new association. This certificate accompanies the rest of the documents for the application for the charter.

The rule requires that when the association is of national scope, the application must be made to the government department or agency that is relevant to the objectives of the proposed association.

If the goals are of a provincial or municipal nature, the entity responsible for receiving the application will be the executive committee of whichever Administrative Board of the Assembly of the People’s Power is appropriate (provincial or municipal).

These entities make evaluations and submit reports to the Ministry of Justice (MINJUS), setting out their considerations regarding approval or denial. MINJUS issues the order that either authorizes or rejects the charter of the association, in accordance with the law and regulations (Article 7, Law of Associations).

That decision can be challenged by lodging an appeal with the Minister of Justice, and his or her resolution of the matter may be challenged in the courts. (Article 20 of the Act).

The state agencies maintain a close link with the chartered association and oversee its activities, coordinating and collaborating with the development and operation of the entity so that it achieves its intended goals. The Ministry of Justice also oversees the functioning of the association and may impose administrative penalties. These rules of connection and dual control over its actions govern the relationship of dependence and subordination of the organization to state interests.

Conclusion: an association in Cuba is created by a private autonomous act, followed by administrative control of that initiative, a process that leads to entry in the appropriate registry, which determines its legal status.

There are associations in Cuba that have a special form of constitution, for example, cooperatives of credit and services (CCS), and of agricultural production (CPA). In these cases the applicants must have the State declare that it recognizes the group as a legal entity, provided that it is organized in conformance with the terms and conditions imposed by Law 36 of July 22, 1982.

The State verifies whether these conditions have been met by the proposed entity, and if so, the official confirmation of the prescribed requirements, and the subsequent order of registration and publication, are what confer legal status upon the entity. The law is not the source of that status.

Political, social, and mass organizations recognized as legal entities in our legal system are also formed in a unique way. They are regarded in the legal system as organizations of people, with legal independence, whose decisions and contracts are given the status of voluntary acts, with the power to dispose of or encumber their assets, for historical-political issues.

Translated by: Tomás A.

Legal Requirements for Associations in Cuba

Cubans have a constitutionally recognized right of association. But it is necessary to distinguish between constitutionally endorsed rights, and state recognition of the legal status of an association as an entity capable of assuming rights and obligations. That recognition is what enables an organization to exercise its legal capacity.

In Cuba, associations are formed in accordance with the requirements of the law. The Law of Associations (Law 54 of December 27, 1985) and its regulations set out those particulars, and once an association complies with them, it is recognized as a legal entity.

Nevertheless, for an association to come into existence, first it is necessary for the entity to be formed, and second, it must receive state or legal recognition. The first step is linked to the will of those concerned, to the act of a group of people coming together to achieve a goal, or setting aside some asset to accomplish a particular purpose.

The law does not impose any requirement that future members of the association show their intention of creating the same thing, it does not require that they demonstrate their willingness in a public writing, following the norm.

The second point refers to the fact of legal recognition, which is the last stage, the registration of the legal entity. Its legal existence is accredited with the certificate prepared by the Registry where it is issued (Article 18 of the Associations Law), which indicates the purpose of its registration. The legal system will not recognize any group as an association that is not listed in the Register of Associations.

To be legally constituted, the group needs the authorization of a state body, which requires an investigation of legality and appropriateness. The permit is a discretionary administrative act issued by the administration (Ministry of Justice) at the request of a party, in this case, of the founders or group of people interested in fulfilling a societal goal.

The law allows associations only for certain purposes: scientific, cultural, artistic, athletic, friendship and solidarity, and any others that promote goals of social interest. The formation of political organizations is implicitly prohibited within the constitutionally-sanctioned single-party system.

It excludes social and mass organizations, churches or religious associations, agricultural production cooperatives, credit and services cooperatives, and others (Article 2).

The State recognizes the validity of the goal and the opportunity that arises from an independently functioning entity in the life of society. It evaluates the entity’s social, non-profit aim. Among the necessary elements it takes into account is its social legacy, which becomes the most important element for its constitution.

Translated by: Tomás A.