Finally, A Crime or Not? / Cuban Law Association, Osvaldo Rodriguez Diaz

In Cuba prostitution is not a crime, this statement is repeated over and over by the media and by people who are considered to have due authority to do so.

In the special part of the Penal code on crimes, this figure does not appear.

Thus, many ask, “How is it that there are so many who are detained for this type of activity?”.

Our society, like others, suffers from it and also considers prostitution as a reprehensible vice, affecting morality and decency.

This “antisocial behavior,” as it is named in the criminal law, can be punished with rehabilitation measures of up to four years of detention in certain establishments.

These security measures, which are called “pre-criminal” and whose purpose is expressed in the law and complementary provisions and which prevent the subject from committing a crime, are imposed on prostitutes. So, is prostitution a crime or not?

If the objective of these security measures is to to avoid crime, then what crime can be committed when a young girl dedicates herself to the oldest profession?

We must look at the causes and conditions that have generated the excessive increase of this activity, and try to eliminate them at their source.

Despite the rigor of pre-criminal security measures, with almost the same regulations as other punishments, although classified as protected, many repeat their act.

In this area, a sad reality is presented in everything that revolves around prostitution, persons accused of and punished for renting a room to a prostitute, not for the exercise itself but as a temporary dwelling, or the hired driver that transfers them to where they will practice the oldest profession.

The subject presented is complex, others who are licensed in the matter should offer their opinion in respect to this matter.

Rodríguez Díaz

By Osvaldo Rodríguez Díaz

Translated by: Shane J. Cassidy

25 October 2013

Ignorance Hurts / Cuban Law Association, Osvaldo Rodriguez Diaz

Osvaldo Rodríguez Díaz

Guided by low-flying vultures, three young men, who moments before had been cutting wood on the mountain in order to build a fence, found the remains of a cow, which 24 hours earlier had been stolen and killed by unknown rustlers.

Though they could smell the odor of meat exposed for a long time in our hot climate, the newcomers felt that it could be useful for their dogs, or perhaps with some treatment, for their own consumption. With their tools they then proceeded to cut the bones along with the remaining meat and hide.

The task was interrupted by the police, who arrived with the animal’s owner, who already knew where the animal had been slaughtered, having found it before youngsters had, also guided by the birds of prey.

At noon it was decided to incinerate the remains of the animal and what the three boys had cut up, necessitated by the state of decomposition.

Not knowing who the perpetrators were and powerless to discover their identity, the police took the three young men as defendants to the police station. Because one of them was a soldier, it was decided that the case would be transferred to military jurisdiction, unfortunately for the three.

Over three months passed before it was presented to the regional Military Court based in La Cabaña. Do not be shocked:

– Acquisition of beef slaughtered illegally, under Article 240.1.3 of the Criminal Code, and

– Illegal Possession of Weapons, under Article 214 of the Criminal Code, both accomplished.

The latter charge, perhaps to justify the prison sentence, which exceeded the minimum limit for the first offense, which was charged from the outset.

The penalty imposed was six months imprisonment for both offenses, or three months for each one.

The incorrectness of these sentences is beyond absurd. To claim that a rotting carcass, which had to be incinerated, has the same character as meat fit for human consumption, as required by law, is extremely unjust.

Further, to treat the woodcutting tools used to cut bones as illegal weapons is breathtaking to any jurist. There is no known way to relate and illegally connect the two offenses, one a crime against public order, the other a crime against the economy.

How do these inexplicable things happen?

Someone should review these cases of clear judicial blundering.

The saddest thing about this story is that the people in court reacted with happiness, considering the sentence appropriate because, as the prosecutor explained, they had already served three months of the six, and had almost become eligible for probation.

Will they give it to them?

30 September 2013

Metamorphosis / Osvaldo Rodriguez Diaz

2_osvaldoBy Osvaldo Rodríguez Díaz

Of how a common citizen is transformed into common criminal in minutes.

On the morning of October 23, 2012, William Estevez Acosta, 51-years-old, married and with no criminal record or police, was summoned to the Criminal Cotorro Municipal Court for a hearing in which he would be declared insolvent and, immediately afterwards, he would be tried for the offense of Breach of the Obligations arising from the violations; that is, not paying a fine for lack of money. continue reading

The origin: His home was searched and an uninstalled and shabby satellite dish was found for which he was fined 30,000 pesos, which, after a month, the time to make it defective, is doubled, and must pay for this item 60,000 pesos.

Unable to verify that obligation as soon narrated occurred.

In the court, William confirmed that he didn’t have the economic capacity, as an ordinary citizen, to pay the fine and that for four years he’d had no job, because he suffers various illnesses that prevent him from working in the kind of occupations his intellectual capacity allow him to perform.

The defendant provided a summary of his medical history which includes diabetes mellitus type II, chronic migraine, circulatory problems and others, with their respective treatments.

The result after deliberation by the court, was that he did have money, because they had taken an antenna, they did not believe in his illnesses, and they dismissed the summary of his medical history, something he was experiencing at this time.

The sanction was: six months in prison, and he was arrested on the spot. Not being accompanied by anyone, a member of the public was provided to alert his family and, unable to leave, William should have filed the appeal in his own right.

Supposedly, everyone sentenced is responsible for a crime. William was sentence and the crime proved. Having woken up that day as a citizen, he became a common criminal after the story told here.

Article 170.1 which was applied, in section 2, enjoins courts to replace custodial sentences by correctional work with internment, but Opinion 305 Agreement 43 of 11 July 1989 the Governing Council of the Supreme Court  says that does not preclude the option of other measures such as limiting freedom.

William was unfortunate, he said that if the fine had been appropriate he would have paid it, but he committed the crime of not having money.

February 6 2013

Couldn’t the Journalist Wait? #Cuba

By Osvaldo Rodríguez Díaz

In the month of November 2011, the concern and emotional state of the family and friends of an accused person reached an intolerable level. They were shocked at the in-your-face and disrespectful manner in which the press referred to the defendant.

The following appeared in the newspaper Granma on 8 November 2011 in a piece headed Theft and Killing of Cattle:

One of the accused, ex-director of CENOP, in a municipality in the capital city, refers, in a totally impertinent manner, to the insecurity of the control arrangements, which he took advantage of, in order to carry out illegal acts, and he boasted of having got round the requirements of laws and decisions, making use of wide open gaps in the arrangements. 

We don’t know how the journalist got access to the information during the preliminary investigation stage, as neither the attorney nor the lawyer, as parties in the legal procedure, were notified of this.

The obvious concern of the relatives of the accused was that this report in a national newspaper could, from that moment, have a negative influence on the views of the judges appointed to deal with the case, which is unhealthy in terms of due process, apart from the fact that in our country we have complained when other parts of the media have got up to such tricks for this kind of purpose.

Fortunately, the judgement has already occurred and it is possible that the tribunal members were not aware of the aforementioned article.

The journalist doesn’t know whether the information provided by the accused is very useful, and it is a great source of regret that tribunals take it into account as mitigating circumstance, by way of Article 52 of the Penal Code.

But, remarkably, the same journalist says that, taking into account similar judgements (to those of the accused, presumably),the Ministry of Agriculture (MINAGRI) now expects to make the procedures more flexible in order to deal with the present gaps.

Beware: every accused person is presumed innocent until proven guilty in open court; couldn’t the journalist have waited for that?

Also, it wasn’t proved in the judgement that the accused would obtain any personal benefit, but would only assist the owners of the cattle in getting the better of the bureaucrats.

Translated by GH

December 26 2012

Against Individual Rights / Cuban Law Association, Osvaldo Rodriguez Diaz

Lic. Osvaldo Rodríguez Díaz

On July 9th, 2012 a summary of the process of habeas corpus was presented before the Secretary of the Provincial Court of the Government of La Habana. This summary was admitted and remitted to the Third Room of the this Court.

The aforementioned Courtroom immediately communicated with the officials involved in the illegal deprivation of the liberties of the prisoners, subject to ratification of the matter.

That same day, at 10:30 pm, the damaged were released and were summoned for the next day. In the Courtroom, the involved officials were also summoned.

The defendant and those responsible for the Combined Eastern Prison Control, who were condemned in the process, appeared in court.

To date, the lawyer had not been notified of any settlement. To the privation of liberty, despite being released, they did not fill his Minutes of Court Appearance.  We do not know what explanation the officials, the ones who were notified in advance by the father of the inmate of the error which they were committing.

Despite having been prepared, the ones responsible for Penal Control keep the defendant in prison, though he is legally at liberty, more than five days.

Although the victim and his relatives do not intend to denounce the ones who are guilty of the crime of illegal deprivation of liberty, article 279.1 of the Penal Code, the Court should notify the Resolution pertaining to the lawyer that interposed the Resource.

The Court could also — conforming to Article 6 of the Court Law — giving account to the Military District attorney’s Office, what is neither of the interest of the damaged, but at least to communicate it to the National Director of Prisons and to bring to light to the principal responsible in order for this not to happen.

When an inmate avoids prison, generally he is sentenced for this new crime, now the contrary  occurs, they retain the guilty one and let go free the one that is responsible, not even an administrative measure.

Anyway, there is no interest in causing harm, only to protect human rights.

The Third Courtroom worked as fast as possible, it should always be like this.

Translated by: TAV

October 19 2012

Annoying Whim / Cuban Law Association, Osvaldo Rodriguez Diaz

Ruins of Isle of Pines Model Prison
Osvaldo Rodríguez Díaz, Atty.

The problem of prisons has always been a recurring theme in literature. In Cuba, we can cite Martí, Pablo de la Torriente, and Mencía, among others.

During second half of the decade of the forties, the controversy was highlighted in a book of only 100 pages by Dr. Waldo Medina, who was then a judge of the Isle of Pines.

Law students echoed the judge’s work, and the then Prime Minister of the government was the most radical in the subject:

“We must abolish the so-called Model Prison of the Isle of Pines. We should construct as many prisons as necessay in the six provinces, and distribute the prisoners among them to be near their family members who can visit them.”

The excessive distance between the place of residence of the sentenced, and the place where they serve their sentence, has generated disgust in all eras in Cuba. Today there are prisons in all regions of the country. In some, there are several, depending on the inmate’s regime.

But the trend of current prison policy is a concern; prisoners are transferred to remote areas, sometimes more than 250 miles from their homes.

The understandable result is that families without financial resources or adequate transport must travel great distances to visit their interned relatives, taking more than a day coming and going; what benefit is this to the inmate’s rehabilitation and reintegration for useful society?

Elderly mothers, wives with small children, and other impediments threaten the ability of the prisoner to receive sanctioned visits when he or she is very far from home. The necessary support: food, personal toiletries, clothes, and above all, communication, can alleviate the prison establishment and the State itself of some of the burden.

Moreover, although there were many drawbacks, there is no perfect prison, and the distance without palpable positive result, could be regarded as an annoying whim.

September 19 2012