Category: Laritza Diversent

A press release from the Archdiocese of Havana on July 8 announced the release, over the course of three to four months, of 52 of the 75 political prisoners convicted in summary trials in April, 2003. Twenty-three had already been released on medical parole.

The releases were the result of an unprecedented dialogue between President Raul Castro and authorities of the Catholic Church in Cuba. Weeks earlier the cardinal, Jaime Ortega, had taken steps for the release of a sick inmate and the transfer of several others to prisons near their homes and families.

The events were described as “great news”, despite the lack of official notice about them from the Government. The subsequent diplomatic agreement with Spanish Foreign Minister Miguel Angel Moratinos omitted to say under what legal basis the releases would occur, the most significant since the visit of Pope John Paul II in 1998.

It is inappropriate to talk of liberation while the criminal judgment imposed on the prisoners has not been extinguished. Otherwise, their departure from the country is forced.

Neither parole nor probation extinguishes criminal liability. In light of this, it would be advisable to anticipate the risks of serving the sentence outside of prison, but within the national territory. And under any pretext, they could be returned to jail.

Seen this way, it is not difficult to understand why the relatives of political prisoners prefer to leave the country. According to the note by the Archbishop of Havana, in the process of release, they took into account the proposals previously expressed to Cardinal Ortega by the families, eager to leave behind the ordeal experienced in the last seven years.

The criminal guilt of prisoners of conscience, according to the existing 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 Council of State may order the Supreme Court to undertake a special review procedure and acquit those accused in the so-called “Black Spring”. Constitutionally, it has the power to issue instructions to that judicial body.

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.

Even more could be done. The parliament can declare the 1999 Law No. 88 (“On protection of national independence and the economy,” also known as the “Gag Law”) unconstitutional, for restricting the right of free expression, information and opinion, as it was used against most of the released prisoners.

According to the Spanish Foreign Minister, who traveled to Havana to join the dialogue between the Church and the Government, the released prisoners who travel abroad, once out, will require government authorization to return, while their family members may do so whenever they want. Fifteen of them are in Spain, awaiting political refugee status or assisted international protection, a special category provided in Spanish asylum law.

If the political prisoners who have agreed to travel to Spain or another country need authorization to return to the island, this means that entry and exit permits will continue in effect, and the confiscation of the property of Cuban emigrants, measures imposed by Law No. 989 of 1961.

This should not be confused with a humanitarian gesture, with a willingness to change. The unfolding of events shows that the Cuban Government has not the slightest intention of removing restrictions on the freedom of movement of its citizens. Is this a breakthrough in human rights?

Moratinos also told the international press that the Cuban government committed not to “expropriate” the homes of dissidents, among other unspecified rights. But during the negotiations there was no legally binding written agreement that ensures that the Cuban State will comply with its verbal commitments. In the national legal system there is no rule that allows making such concessions.

As a general rule, the Cuban authorities declare a permanent abandonment and proceed to confiscate the property of citizens who choose to reside permanently outside the country, unless granted the Permit of Residence Abroad (PRE). Permission is granted to Cubans who marry foreigners. But in the released prisoners are not in this category.

The fact that they talk of liberation, but not of the actions by which their release must be legally formalized, suggests that the Cuban government is trying to cover up the forced exile of political prisoners who agree to travel to Spain or other nations.

This is an illegitimate act and a violation of the rights of those people. No government action recognized by law may force a Cuban to leave his or her own land.

Laritza Diversent

Photo: AFP. Lester Gonzalez shows his passport shortly after his arrival in Madrid.

Translated by: Tomás A.

Recently the Archbishop of Havana announced the release of 52 political prisoners over the course of three to four months. A rather strange act, this being a secular state. In turn, Miguel Angel Moratinos, Spain’s Minister of Foreign Affairs, told reporters that those released will travel to his country, and once they are out of Cuba, they will require government authorization to return, while their family members may do so whenever they wish.

We should not be misled. Do not confuse a humanitarian gesture with a willingness to change. If those who are released need permission to return to the island, then the government does not have the slightest intention of removing restrictions on the freedom of movement of its citizens. Is this a breakthrough in human rights?

If they do not eliminate the entry permit, it means that they will continue to confiscate the properties of Cuban emigrants – measures imposed by the same legal provision, Law No. 989 of 1961, that also governs permanent abandonment.

Moratinos also said that the island government agreed not to “expropriate” the homes of dissidents in Cuba, among other unspecified compromises. Some doubts remain. Under what legal assumptions will the Cuban state fulfill the concessions?

The government declares a permanent abandonment and proceeds to confiscate the property of nationals who choose to reside permanently outside the country. Permission to reside abroad is given to Cubans who are married to foreigners, which does not apply in this case.

Will there be a legal formulation about this? What guarantees do these people have that, once they are abroad, the government will fulfill a commitment made by the representative of a foreign state? Who will compel it to comply? What will happen when it asserts the principles of state sovereignty and non interference in internal affairs? There is too much uncertainty to claim victory.

Laritza Diversent

Translated by: Tomás A.

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.

To comment on this article please visit:
Lartiza’s Blog: Laritza’s Laws and Legal Advisor.

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.

To comment on this article please visit:
Lartiza’s Blog: Laritza’s Laws and Legal Advisor.

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 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.

To comment on this article please visit:
Laritza’s Blog: Laritza’s Laws and Cuban Legal Advisor

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.

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.

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.

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.

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.