Our Position: Félix Navarro, José Daniel Ferrer, Librado Linares, Antonio G. Rodiles, Wilfredo Vallín
Havana, August 16, 2012
TO NATIONAL AND INTERNATIONAL PUBLIC OPINION
Yesterday, August 15 of this year, while handing out the Citizen Demand for Another Cuba in a central area of the Marianao neighborhood in Havana, Cuba, three citizens were arrested and taken to the 6th Station of the National Revolutionary Police (PNR).
On receiving news of this arrest, we the undersigned presented ourselves at the Station to learn the details of the case and whether there were any charges against those detained. After having spoken with the people who appeared responsible, it seemed critical to us that we make the following statement to establish, for the future, our position with regards to this complex problem.
Our response is based on the Constitutional provision established in Article 63:
“Every citizen has the right to direct complaints and petitions to the authorities and to receive the appropriate attention or responses, in a reasonable time, in accordance with the law.”
Protected by this provision in the nation’s Constitution, we went to the National Assembly of People’s Power and delivered this document in order, first and foremost, to inform the government of the country about it, so that it cannot, now, suggest that we are acting behind its back, nor without its knowledge.
If what is said in Article 63 is, in fact, true and is honored in today’s Cuba, then we are acting in accordance with the Law, a right that must be respected by the military authorities as well.
By arresting and beating citizens who call for the ratification of the United Nations Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, these authorities are not only violating a right recognized by the Universal Declaration of Human Rights, and by the Constitutional Law governing its own citizens, but also appear to be ignoring that the government itself signed these documents on behalf of the people of Cuba, on February 28, 2008 in New York City.
Signing Human Rights Covenants is a Sovereign Act, is the title that headlined an article in the newspaper Juventud Rebelde (Rebel Youth) on that date. But at the same time, Article 3 of our Constitution reads:
“In the Republic of Cuba sovereignty resides in the people, from who originates all the power of the State. This power is exercised directly…”
Our real and only intention is to allow the people of Cuba to truly, peacefully, and in a civilized manner, express their opinions about a problem as vital as their present way of life, their hopelessness about the future, and their ability to suggest real paths of change that would improve their precarious existence.
In contrast, the position of the authorities has been to create a climate of conflict with civil society, to provoke altercations in the public order with its acts of repudiation, its beating of opponents, men and women, including the Ladies in White, and ultimately its insinuation that the intention of the dissidence is to “provoke situations that encourage a military intervention in the country.”
While buildings collapse on the bodies of our compatriots, to simply dust them off a little with no visible prospects of a solution, and this after decades of other equally difficult problems, to remain silent in complicity after 54 years of setbacks, is a civic and moral cowardice that many of us are no longer able to bear.
We Cubans who call on the rest of our compatriots will act responsibly, without questioning or resisting the actions of the police or State Security, at least in the public street, even when a disproportionate operation using unjustified violence is exercised shortly after the latest one, as documented during the funeral of the known opponent, Payá Sardiñas.
If there are violations of the law they are not committed by us, but by the repressors who think that they can resolve all the problems of Cuba, without paying any attention to recent historic experience, with contempt for the citizens expressed in arrogance and brute force. This could lead ALL OF US down a path with no return.
In addition, we are informing our brothers within and outside of Cuba, as well as the international community, about what is happening here in order to establish responsibility for what might happen in the future.
The Cuban Nation, fortunately, has had its illustrious sons and great patricians. One of them left us with this: “To beg for rights is the domain of cowards incapable of exercising them.” Another great among the greats, closer in time, told us, “I do not seek danger, but neither do I run from it. I simply try to do my duty.”
Standing on these principles, we will reclaim our rights and we will do our duty.
Félix Navarro, José Daniel Ferrer, Librado Linares, Antonio G. Rodiles, Wilfredo Vallín
With copies to:
– All the activists of the Campaign
– The National Assembly of People’s Power
– Economic and Social Council (ECOSOC) of the United Nations
He had a look of concern on his face as he spoke to me. He was a neighbor who came to warn me. According to his account someone from the police, who identified himself as Agent Brayan from the Department of Technical Investigations (DTI), had been to his house to ask for his help. He wanted to place a listening device near my home.
I did not know whether to be be annoyed or amused. After thinking about it a bit, I remembered another Brayan – the agent from State Security who “chatted” with me during my detention on April 13. At least that is how he identified himself. They never use their real names.
As I am almost certain we are talking about the same person (and if not, it does not really matter), I would like to send a message to my interlocutor from that day about the issue that my neighbor brought to my attention.
Brayan, what you might hear in my house is the same thing I told you the day of our “interview,” which I will reiterate now: Among the people most in violation and ignorant of the laws of Cuba are those of you who act as though legality had nothing to do with legal procedures. Examples of this abound.
I am quite convinced of this. It is a secret to no one — not to the general populace, not to the attorneys, not to the country’s highest authorities.
I will say what I think, with or without microphones, so there is no need to trouble yourself. I do not know if you are ignoring what the Maestro said: Only truth can wrap us in a manly gown.
The most annoying thing is that this has the atmosphere of a movie thriller, of illegality, of plots against the state, as some of you would like to claim.
It is common knowledge that, on numerous occasions, the domestic opposition has invited you to participate in its dialog, yet you always refuse. Clearly, if you accepted, the climate of conspiracy that you prefer to see would fall by the wayside, and you would not be able to invent scenarios that required punishment by “trial” like that carried out against Dr. Darsi Ferrer some time ago.
Young Brayan, you seem to ignore the fact that, when your superiors provide some information to be pursued about the “enemies of the revolution,” they are communicating this only to discredit them. If there is something positive to say about such people, you will not be informed.
When this young man “spoke” to me, he pretended he was doing as he was told, although his actions (since he did nothing else but act) reminded me of those lines from The Prophet Speaks by Luis Aguilar León:
Cubans do not need to read, they know it all. They do not need to travel, they have seen it all.
Previously, I suggested you see the German film, The Lives of Others, from which you might learn something useful about all this… and your job.
I would like to make another suggestion. It involves reading a very good book by Leonardo Padura, The Man Who Loved Dogs. You might see in one of the protagonists of this literary work what you could become, if you do not react in time — your possible future self-portrait.
In the Cuban Penal Code, in Title 1, Preliminary Disposisions, Article 1.1, we read:
This Code has as its objectives:
– to protect society, persons, the social, economic and political order and the State system;
– to safeguard the property recognized in the Constitutions and its laws;
– to promote the full observance of the rights and duties and citizens;
– to contribute to forming in all citizens the consciousness of respect for the socialist legality, of the performance of the duties and the proper observance of the norms of socialist coexistence.
Let’s try to analyze, albeit briefly, the objectives that the current penal code establishes, starting with the first: to protect society, persons, the social, economic and political order and the State system.
This first objective begins, to protect society, persons … in that order. That is, the first is the society, only then the people. Allow us, however, a brief tour of History.
The individual, the person, is first that which arises from the civitas which is nothing more than a creation of man. All who have dealt with the appearance of man on earth agree that homo sapiens predates the creation of society.
Moreover, this formulation reminds me of that controversial and much-quoted French philosopher, Jean Jacques Rousseau, who through his formulation of what he called the general will, many saw the intention of disregarding anyone who thinks differently or disagrees, or belongs to a minority, or deviates from majority behavior … which can be achieved in many ways.
In other words, since it is easy to argue that the rights of all come first over those of a few, the reduction of those few, with controversial arguments or not (or with force) can be easily justified, especially if what comes next is … (to protect) the social, economic and political order and the state system.
This formulations should not surprise us at all because Vladimir Ilyich Ulyanov had already left us with “the law is nothing more than the concentrated expression of politics” and the expression of the penal code under consideration shows us exactly that.
It is interesting to contrast this article with the same title and section of another code, for example, that of our Latin American sister republic of Colombia. It reads:
Title I, Article I: Human Dignity. “Criminal law will base the respect for human dignity.”
And if what this is about is the importance of our having the rights and individual freedoms endorsed by the UN Covenants on Human Rights, then the Preliminary Provisions of the Penal code are — in terms of rights and freedoms and in my opinion — a bad start.
As our readers know, educating the national population on legal issues is one of the projects of the Cuban Law Association.
Given the importance of the issue, and the need for it, we intend to keep working in this direction from this space, to assist with this preparation so needed by everyone.
So, we will begin with Question-and-Answer: What is a Criminal Code?
Normally a Criminal Code is a compilation of those human behaviors considered detrimental to social harmony and which are, therefore, punishable due to their damage to the established order and peaceful and organized relations that must exist in any human community.
When a human act (or inaction) or actor is damaging in relation to other people in society it is defined as harmful by the State, and so it is considered and defined as a “crime” and comes to occupy a place in the conduct we refer to in the previous paragraph.
Each and every one of these human behaviors, now conceived as crimes, are enunciated, condemned and reflected in writing in the articles of the Criminal Code in question, so that individual behavior can be collated with a description in a prohibitive Article, and coinciding with that it is the understood that such conduct is a crime.
If the behavior of subject X does not coincide very closely with the provisions of the collated Article, no crime would exist…
So, in summary, the criminal code is nothing more than a compilation of those behaviors prohibited by the State (although it also includes other aspects relating to the adjudication and imparting of criminal justice).
The non-observance of its provisions will entail punishment in the form of penalties imposed by the established state apparatus (the judicial system).
The Cuban Penal Code, begins its presentation with some Preliminary Provisions which are the objectives of the code in force in our country, which I will discuss in detail in future work.
It is interesting to read abut the lives and ideas of the of the philosophers from Antiquity to our own time.
They are deep thinkers who, from their perspective and personal appreciation, try to to give us an interpretation of what the universe is and respond to the great questions of all times: Who are we? Where are we going? What can we expect in the future? How should we live our lives?
One of these great men was Aristotle (384-322 BC) of Stageira, Greece. He had been a disciple of another great of these affairs, Aristotle of Athens, more commonly known as Plato, and later worked as a professor in his teacher’s Academy.
Aristotle is famous for many things, but for me the most innovative and extraordinary thing he left us was the concept he called “entelechy.”
To explain what the Stagirite wanted to say with this, I am going to offer an example that could be illustrative and and from which we can take a seed of some fruit.
A seed has the potential to become a fruit sometime. It will first become a germinating seed, then a bush, later a flowering tree and, finally, fruits, although it’s not absolutely sure to happen in this way.
But the potential and probability are latent in it for the fact of being a seed. Whether it becomes was it was conceived for by mother nature will depend on the environments, the external conditions that surround it.
Aristotle located this same probability and potential in the human being. Man (speaking in a generic sense) is born with the characteristics that belong to him by the sole fact of being a man and than can turn him into what he was destined to be: everything is dependent whether his environment supports the conditions for his development.
This environment that allows the full development of the individual in all his potential, should be guaranteed by the group the individual belongs to, by his society and, particularly, by the State, what was created by citizens through the Social Pact precisely for this purpose.
This idea will be taken up again by Pico della Mirandola when he writes his “De dignitate hominis” in 1486, with other words and in a dialog he recreated between God and Man, the same philosophical essence of Aristotle:
I have not given you a specified place, nor your own face, nor a special gift, O Adam, so that you desire and conquer and possess your place and your gift for yourself. Nature contains other species in some laws set by me.
But you, you have no limits, you define yourself according to your own freedom, in whose hands I have place it. I have not made you celestial, nor earthly, nor immortal, so that you will be sovereign over yourself, freely shape your own form, like a painter or sculptor.
Many years later this conception will be returned to by the great thinking Immanuel Kant, German philosopher (1724-1804), born and died in Königsberg, a city in eastern Prussia.
For Kant, entelechy (which he called “human dignity”) consists of understanding that we can never treat nor be treated as a means, but always as an end and act accordingly, so that no one can use others for his own interests, in that all exploitation (whatever it may be) is illegitimate and immoral and no man is more human than another.
This is precisely the basic fundamental idea that informs the entire Declaration of Universal Human Rights, our inalienable Rights which, however much they want to hide in their reality, will end up imposing themselves, because as another Great Thinker said, this one a Cuban like ourselves:
A good rider should not let go the reins of his horse, nor a free man his rights. It is true that it is easier to be led than to lead, but it is also more dangerous. And his own exercise of them is very bright, very animating, very invigorating and very ennobling.
Site of a collapsed building in Havana. Photo: Orlando Luis Pardo Lazo
Soon, a new population and housing census will take place that shall show how many of us there are and the current living situation in our country.
Among the many and ever more acute problems, that of housing is one of the most difficult given all that it implies for the family and individuals. Extended cohabitation among different generations, many times with a great deal of overcrowding, leads sometimes to the loss of values, dehumanization and domestic violence.
The cases of close family members — in a pitched battle for a place to live — turn out to be dramatic and many times embarrassing.
For some time now the inns where rooms were rented to couples by the hour — welcome in a country where multi-generational families cram into small apartments — have been converted to shelters for victims of hurricanes, fires, building collapses and so on. Today these true citadels crammed with people in precarious conditions.
Like many things in today’s Cuba, this problem remains static, without any sign of a plan or on the part of the State which, for many years, did not permit the repair of homes or the construction of new ones through the sale of building materials to the inhabitants; now it appears there is no answer to this problem created by State itself over long long years.
Thus, the death of the owner of a home, often creates a whole conflict between those who consider they have a legal right to the housing for one reason or another, because they know: either they make it theirs or they will have to stay put… where no one wants to go or stay.
Another problem with this harrowing case is that of forced evictions … sorry, I meant to say “removals”.
When a house is abandoned by its inhabitants for any reason whatsoever, and sealed by the State, is not uncommon for the seal to be broken and be occupied by people who literally live on the street.
In other cases, there is no housing and people are forced into squats or one-room tenements, or they may “fabricate” (if this can even be called a fabrication) something that brings to mind a room but is made from cardboard, palm fronds, pieces of zink or whatever things that can find… and show up with wives… and children… sometimes babies.
In many of these opportunities, they end up forcibly evicted … sorry, (in Cuba there are no evictions), again, I meant to say the “extraction” which is performed by the security forces, responding to a different conception of “due obedience “.
And if the UN says in its document, The Practice of Forced Evictions, of June 1997…
Forced evictions constitute prima facie violations of a wide range of internationally recognized human rights and can only be carried out under exceptional circumstances and in full accordance with the present Guidelines and relevant provisions of international human rights law.
…it says what is wants to say because it doesn’t have anything to do with us since here there are no evictions… there are extractions.
One fine day the decision was made to sell cell phones to ordinary, everyday Cubans.
To many of us, who had never been “authorized” to have a landline in our house, they are now selling phones … cellulars.
But, like so many other things that are hard to understand in this country, cell phones proved to be one of those insoluble contradictions, because before their appearance in society, it was possible to keep many “awkward” events hushed up. Now thousands of people walk down the street with them and it is not so easy to maintain the “secrecy” of some events.
So, if there is an altercation in a baseball stadium, “alternative” telephones are there to quickly let everyone know what happened, and occasionally include an on-scene video.
If a person is arrested on a public street (ordinarily without an arrest warrant) as usually happens to those on their way to journalism courses, there is always someone to take snapshots of what occurred, or to make a “live” report from their location giving details and identifying the patrolmen involved and even the license plate numbers of the police cars.
But as every action is followed by a reaction (at least that’s what we learned in physics), the police tactic has been to remove the license plate whenever there is danger of it being filmed in some way. So many citizens have been able to verify this “act” on repeated occasions.
To be fair, we have also seen law enforcement officers who do not hide their plates in these circumstances, and officers willing to fully identify themselves; but the truth is that these are in the minority.
Another reaction has been to prevent the taking of pictures. Thus, in a recent building collapse caused by rain on Monte Street in central Havana, just a few days ago, a person taking pictures of the place was about to be arrested by the police because (this is what that they argued) “you cannot take pictures of building collapses or fires.”
Nothing was said, however, about those responsible for the fall of the building.
In even more extreme cases, the approach has been to forcibly seize the person’s camera or phone (or both) — items that in many cases those deprived have never seen again … without explanations of criminal proceedings of any kind.
The latest thing I’ve heard on this subject was told to me by a friend from Pinar del Río last week. A police dog was checking for drugs in some luggage. My friend liked the dog and took a picture … and ended up in a jail cell where he had to go on a hunger strike before they finally released him some days later, because “police dogs cannot be portrayed while they work.”
It is possible that readers from other countries will see in these words an exaggeration or an intention to discredit. Neither is true, it is just that – for our tragedy – Cuba is today, as much as it hurts us, a country of ABSURDITIES.
There is a word that when you hear it, it’s difficult not to evoke the barbarity of the Inquisition that forced a 20th century Pope to apologize to humanity for actions so inappropriate for the Church of Christ.
Faced with the subject it’s common for names such as Dachau, Treblinka, Auschwitz, Gestapo, Gulags, Lubyanka, and Siberia to come to mind, just to cite a few.
The word in question is TORTURE, a method of obtaining a confession from (or punishing) a person at any price, a practice that, unfortunately, has continued from the time since the confession was considered the “queen of evidence.”
Unfortunately, torture has been used in Cuba at different times in its history. We saw chilling photos of these procedures during the Batista dictatorship; this was after the Revolution and during the trials where people shouted “To the wall!” to demand the execution of those who had tortured.
But, like any human creation that persists over time, torture evolved. Its forms and methods have become more subtle, more refined, more painful.
Now it is too coarse to brutally beat a prisoner, pull out his fingernails or put him on the rack. Now there are psychological tortures and others with a ’scientific’ basis.
Faced with the continuation of such practices, Human Rights Organizations of our time have repeatedly tried to curb such excesses that show the worst of human nature.
Thus we read in the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, from June 26, 1987:
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms…
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975…
Nevertheless we recently get the news that in the particular case of Cuba, a Rapporteur on Torture has been named to visit (and the government has accepted). Unusual, right?
The point is that this already happened once and the international official designated for this mission… was never authorized to enter the island.
Now history repeats itself because the government says it will accept the visit, but as often happens in our troubled country, the problem turns out to be WHEN, and once again no date is set for this visit.
We regards to this new UN rapporteur for this little island — which should not fear the visit it if has nothing to hide — well, we could paraphrase the great Shakespeare:
“A ghost is traveling around Europe: it is the ghost of Communism” said Karl Marx and Friedrich Engels in their famous Manifesto.
Over a century later, when he was Foreign Relations Minister and the one who best interpreted the thoughts of the Commander in Chief (Fidel Castro), a photo of Felipe Pérez Roque shaking hands with Mr. Ban Ki Mon, Secretary General of the United Nations (UN), appeared in the newspaper JuventudRebelde, on February 28, 2008.
The snapshot was taken on the occasion of the signing, by Foreign Relations Minister Felipe Pérez Roque, of the two International Covenants on Human Rights (ICCPR and ICESCR) that came out of the UN in 1966 and started to be signed and ratified worldwide, going into effect in 1976, 10 years later.
The UN’s Universal Declaration of Human Rights of 1948, despite the overwhelming moral commitment that it entails, is only a recommendation, not a binding treaty for any government.
Precisely, because of its non-obligatory condition (or non-binding, as you would say in the language of international law), the UN created these two International Covenants, detailing and more specifically defining the rights laid out in the Universal Declaration. The two Covenants are: the International Covenant on Civil and Political Rights (ICCPR), (or first generation), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), (or second generation).
Four years after this event, there are several questions to be answered if we want to analyze it:
Why would the Cuban government take 32 years to sign such important documents?
Why did the citizens never receive an explanation about the reasons why the documents were signed?
Why have the Cuban people never been exposed to the content of these Covenants?
What implications would the ratification of such legal instruments of justice have for the Cuban people?
Why, since their signing date, have these agreements been kept in the “secrecy” that today is criticized by the authorities?
The problem is that, right now, we continue to face this widespread crisis that seems endless, just like the absence of deep and serious responses from the side of the government.
Outraged people are not only in Europe, in Wall Street or in Arab countries. A group of citizens from Cuban civil society is demanding the ratification of the UN Covenants signed on behalf of the Cuban people, precisely because we are… outraged.
Ghosts have always existed throughout history. Yesterday, Communism was Europe’s ghost. Today, in Cuba, a new ghost starts moving around, horrifying and frightening for some: the ghost of the Human Rights Covenants of the United Nations.
The multifamily building lies in ruins. A mountain of rubble rises now in its place occupying a part of Monte, a very central street of Havana. Passers-by run, there is noise from sirens of patrol cars and firefighter equipment since there are most probably dead and injured.
Within the drama all of this implies the most serious thing, however, is not the collapse of the building but that occurrences of this nature are being repeated with a lot of frequency in the whole country.
It is very sad and at the same time unpleasant to see images as these…just because it rains a bit.
And it is that during more than fifty years those facilities were not repaired, were never subjected to maintenance of any nature neither on behalf of the State nor of its inhabitants since, in the case of the latter, they did not have the necessary resources at their disposal to do so.
Another circumstance that would bring about laughter if the problem were not so dramatic (it is unknown what will become of the persons who were left homeless, where they will go and if they will remain during many years in shelters crammed with others who suffered the same fate), is that one is not permitted to take photos of the collapse.
Those who dare to do so may be detained.
The image of a Cuba where buildings collapse only because nature fulfills her duty of making it rain, should not circulate around the world. It would be a discredit to the genuine representation of the proletariat.
But not only the buildings and streets are cracking.
The credit of the authorities splinters (constant cases of corruption at that level, admitted failure of the programs of the Party, promises of recovery that we do not see, changes that don’t get to the bottom of the problems).
Each day the peso and CUC are more devalued by the continuous increase in prices.
Thousands of Cubans continue, especially the young, trying to abandon the country by whatever means.
And this list could also continue ad infinitum.
The real lifeline, perhaps the only ones that we see, are the Pacts with the UN which the government of the island signed in 2008 but does not ratify and of which not a single word is spoken.
If tomorrow there appeared in the official press that the current authorities have ratified those most important documents, many of us would think the real changes have begun to arrive to our country and that it is the start of speaking and acting seriously for a transition that is real, peaceful and controlled in order to avoid disorder and violence that is unwanted by the great majority of us.
While that is not the attitude, this building in ruins, one more of the many I have already seen, aside from being the disaster that it represents for those who once lived in it, constitutes an inevitable and dangerous OMEN.
I always thought that when the situation came to be the present one, the authorities (especially the political police) would behave with a greater degree of seriousness and, above all, of professionalism. The reality ruins my expectations.
Just moments before sitting down to write this post for the Asociación Jurídica Cubana (AJC: Cuban Legal Association), the facts are as follows.
As is known, since we do not hide it at all, the AJC, in collaboration with Estado de SATS, is recording a series of informative programs for the legal education of the population. To those ends we have published: “Detention” and “Searching Inhabited Homes”.* Coming soon another program will be published, this one with the title “Habeas Corpus”.
Once edited, these programs are published by Estado de SATS on the INTERNET so that they can be accessed by all those who want to do so outside of Cuba. For the interior of Cuba, discs are burned or they are recorded in (portable) memory; will we ever have Internet?
The programs to which I am referring have a didactic and informative objective with a very precise subject: that which is established by national law in relation to certain penal, procedural or constitutional topics.
I don’t believe that any government truly democratic nor certain of its people would object to having its legislation spread among its citizens. But, it seems, here we cannot count on either of those two characteristics.
That’s how things are, and so that he would participate in this latest program I have mentioned, I invited a young lawyer from Las Tunas, who takes care of the activities of the AJC in that city in the Eastern part of the country and he, kindly, accepted.
Since we do not feel that deception (in any of its forms) is a decorous way of doing things, it was explained to the attorney Yunieski San Martín Garcés, who furthermore knows well what we do and how we do it, what his stay here would consist of and what would happen once the material in question was recorded. In good faith, Yunieski boarded a bus to Havana.
But… (and in the current state in which we live there will always be a BUT), leaving the municipality, the bus on which Yunieski was traveling was detained by various patrol cars. He was forced to get off, the bus driver was told that he was transporting a well-known counterrevolutionary, he was taken to a police station by State Security and there he was informed that his arrest was due to the fact…he was coming to film with us material to be turned over to USIS (the United States Interest Section in Cuba).
Once again we find State Security, the USIS, the show in the middle of the road, the plot in the shadows against the government, the international intrigue, the treason by nationals against our worried and self-sacrificing patricians (who, incidentally, in 50 years did not fulfill the agreements of their own congresses), etc., etc., etc.
I already stated that we publish what we do on the INTERNET, something the political police does not do with its arbitrary acts and especially, with its illegalities of all types.
The people of Cuba have the right to know their laws and to employ them to defend themselves against those who, incapable of showing themselves with the truth, and hiding their identity, recur to this which is nothing more than resorting to lies.
*Translator’s note: Article 218 of Cuban criminal law authorizes the search of inhabited dwellings even if the inhabitant refuses to allow it.
“A specter is haunting Europe: it is the specter of communism,” said Karl Marx and Friedrich Engels in the Communist Manifesto.
Over a century later, when he was the Foreign Minister and the best interpreter of the thinking of the Comandante en Jefe, Felipe Perez Roque appeared in photo in the newspaper Juventud Rebelde (Rebel Youth) on February 28, 2008, shaking hands with Mr. Ban Ki Mon, Secretary General of the United Nations (UN).
The snapshot was taken on the occasion of the signing by the Cuban foreign minister two Covenants on Human Rights UN documents that had been created by this international organization in 1966 and enacted in 1976, that is ten years later.
The Universal Declaration of Human Rights UN 1948, notwithstanding the overwhelming moral burden it entails, is only a recommendation that governments can adopt or not, without it being binding on them.
Precisely because of its non-compulsory status (or non-binding, as is customary to say in the language of international law), the UN implemented a posteriori those Covenants that do have that character, detailing the Declaration in two documents, one on Civil Rights and Political (or first generation) and one on Economic, Social and Cultural Rights (or second generation).
There are several questions that immediately come to mind when analyzing this event of more than four years ago, namely:
– Why the Cuban government, which was already in power in 1976, would take 32 years to sign documents so important for any country on earth?
– Why Cuban citizens have not received any explanation of the reasons for this signing?
– Why have the content of these covenants never been communicated to Cubans?
– What would be the implications for all of us if these legal instruments were ratified?
– Why are these agreements, signed and dated in “secrecy,” now being criticized by the current authorities in the country?
The problem is that, right now, we are continuing to face the generalized crisis that we again see in Cuba — and that appears to have no end — without any deep and serious solutions from the government.
The outraged are not only in Europe, confronting Wall Street, or in Arab countries. A group of citizens from Cuban civil society who have called for the ratification the UN Covenants, signed by the former foreign minister in the name of the people of Cuba, are exactly that… Outraged.
Specters have always existed throughout history. Yesterday in Europe it was communism. Today in Cuba a new specter is beginning to move, too terrifying for some: the Human Rights Covenants of the United Nations.
A journalist from abroad asked me about the content and the implementation of something known in Law as Right of Appeal, which in Cuba turns out to be problematic.
In our case, the first problem is that our multi-awarded compatriot Yoani Sanchez brought this action against the Minister of Interior, General Abelardo Colome Ibarra.
The reason why Yoani did such a thing is that she has been invited, on nearly twenty occasions, to receive her awards abroad, but has never been given a “White card” — the permission to leave the country — so she can receive her awards in person.
The second problem is that in the XXI century the world has evolved enough, so that in any country its citizens are the most important thing. And that means we must treat these people with the human dignity that José Martí claimed for the Cubans and that is now found in the Universal Declaration of Human Rights.
The third problem is that “according to the law” the actions of the government and the state must have legal foundations and legal procedures that are clearly established, known, and within reach of citizens, enabling them to defend their rights in any given situation.
The fourth problem is that when we act ignoring the laws and legal procedures that exist, we fall in the arbitrariness of the authorities, something not very well regarded in these times.
The fifth problem is that the people will never tolerate this arbitrariness indefinitely, and they will begin, as the well-known blogger has, to use the resources that the national law gives… to the protesters.
The sixth problem is that the problem now created (and forgive the redundancy) could have been avoided by respecting Article 63 of the Constitution of the Republic:
Every citizen has the right to make complaints and petitions to the authorities and to receive the attention or the appropriate responses on time, according to the law.
Perhaps we can find a moral in all this: Problems can be avoided … when rights are respected.
By Antonio G. Rodiles, Julio Alega, Manuel Cuesta, Wilfredo Vallín
Introduction
The centralized and planned economy is closely linked to state ownership. For a process of economic decentralization to be successful, there must be a parallel process of decentralizing property.
The Cuban government has undertaken timid reforms with the objective of restarting the economy without making fundamental transformations. The lack of integrity, the rent seeking character, and the lack of transparency are the hallmarks of these timid reforms that are clearly only in pursuit of a transmutation of power. The facts are a demonstration that one year after their implementation the impact of these reforms has been very limited. Land has been delivered to farmers in usufruct as an emergency measure to end the chronic shortage of food.[1] The result, however, has not been as expected, among other reasons because many producers are wary of an offer to work land that does not belong to them and that can be withdrawn at any time. On the other hand, for years the Cuban State has preferred to import billions of dollars worth of agricultural products, and in particular American products, instead of providing greater incentives and free markets to domestic producers.
The law governing distribution of land in usufruct allows great discretion and equally great uncertainty, as we can see reflected in some of the articles of the governing statute, Decree Law 259 [1]:
ARTICLE 6: The area to be given to each person in usufruct, be it a natural or legal person, is determined according to the potential labor force, the resources for production, the type of agricultural production for which the land will be destined, and the agricultural production capacity of the soils.
ARTICLE 14: The termination of the usufruct granted to natural persons should be for the following reasons:
c) for ongoing breach of the production contract, previously determined by specialists;
f) for acts which would defeat the purpose for which the usufruct was granted;
h) revocation for reasons of public utility or social interest, expressly declared by resolution of the Minister of Agriculture or higher levels of government.
Subsequently, the Council of Ministers also approved the sale of houses and other measures related to housing properties [2]. These measures have been well below the actual needs of Cubans because in no case do they provide the ability to generate new housing stock, which is one of the most pressing problems facing Cuban society today. Also, they have recently rented some locations in a very poor state of repair to microbusinesses.
There are great similarities between the urban and rural scenarios in our country. Havana is not full of marabou weed, but there are thousands and thousands of dilapidated properties – many are complete ruins — and large areas of unoccupied land. The State alleges lack of resources to undertake restoration and construction of the housing stock and infrastructure, but these spaces constitute a wasted frozen capital that should be handed over to Cubans as soon as possible, for its fullest use. If we add to this the vacant land nationwide, we have a large number of urban and rural properties waiting to fulfill their social function.
The process of liberalizing property use and ownership should be initiated as soon as possible, not only for idle farmland but also for urban land and properties. It is essential to end the ambiguities with respect to the character of property, because this alone generates great inefficiency and corruption; property needs real owners. While the categories of owners in usufruct and tenancies may exist, there is no reason why that should be the basis for our economic structure. The existence of a legal framework that supports private property is a necessary condition for an economy that offers real opportunities to all participants.
This article first analyzes the different methods or liberalizing property ownership that were implemented in other countries, proposes an auction program that puts frozen resources at the service of Cubans, which would be extremely helpful right now, discusses the economic environment that must accompany these transformations, and offers some conclusions.
Foreign experiences in the liberalization of property ownership and their possible application in Cuba
A process of liberalization of property ownership undoubtedly touches highly sensitive fibers of the Cuban nation, inside and outside the island, and, therefore, facts and circumstances of the past and present must be carefully analyzed to achieve a broader consensus. Although it is necessary to undertake a thorough analysis of the issue of property related to State enterprises, in this paper we focus on addressing the case of idle lands and ruined properties.
In many countries, in recent decades, there have been processes of liberalization of property ownership, some with very encouraging results, while in others corruption, nepotism and patronage predominated. In the former Soviet Union, the process of liberalizing property ownership converted many members of the old government elite and dishonest individuals into new millionaires, creating great discontent and disillusionment among the population.
It is very important to understand the problems that have appeared in previous experiences and to evaluate the best options for our case. In the Eastern European countries, and in China and Vietnam, various mechanisms were applied; among the most popular were:
1) Restitution or compensation
2) Sale to the public
3) Sale to the employees
4) Sales en masse
As a first step it is essential to create institutions and rules to govern this complex process. To restart an economy in ruins, like ours, it is essential to guarantee a system of legitimate ownership. This will not be possible if a system of restitutions or compensations to the many owners who lost their properties due to unjust confiscations is not implemented in advance.
How did the process of claims function in the Eastern European countries?
“In East Germany two million claims were filed, cluttering up the courts for years and holding up thousands of construction projects and businesses because of the uncertainty of legal claims. Some restitutions occurred in the majority of the Central European countries, particularly of land and real estate, while restitutions for medium and large businesses were avoided.” [3]
In Hungary the law did not offer restitution, and primarily used compensation through government bonds that could be used to acquire shares in state enterprises as they were sold. [4]
Poland, for example, preferred compensation over restitution. Poles living abroad were eligible for restitution or compensation in the form of state bonds only if they adopted Polish citizenship and returned to Poland permanently to administer the reclaimed businesses and/or land. [5]
Each country had its own characteristics, and in our case it is very important to evaluate the great deficit in the housing stock and the majority of the population’s lack of capital to be able to participate in the purchase process. The issue is not only to liberalize property ownership, principally ruined and underutilized properties, but that this process truly yields a clear benefit and grows the economy of the country.
The experience of other countries tells us that these sales culminate in a short period, as people realize that this will be the only way to acquire properties relatively cheaply.
Let’s analyze each of these methods of privatization in more detail and look at how they could operate in the case of Cuba.
1) Restitution or compensation
The issue of restitutions in our country is controversial and unavoidable. For years there has been great controversy surrounding the claims and devolutions of the properties to owners whose ownership predated the year 1959. Gradually, some consensus is appearing, to shed light on a sensitive and delicate point.
We can separate these claims into two groups. The first group is those properties currently occupied by families, and the second is those properties that remain in the hands of the State.
As suggested by Professor Antonio Jorge:
“The right of permanent occupation for urban residential properties should be recognized in favor of the occupants or current residents. However, the former owners, as in the cases of other property, should be compensated” [6].
Teo A. Babun similarly agrees:
“Fortunately, most expatriate groups have recognized that the return of homes or residential properties is not feasible. The discussion can be restricted to non-residential properties. Looking beyond returning the properties, this simply means that any litigation would be limited to issues concerning the validity of the claims and the value of what was lost, and the compensation, if appropriate.” [7]
The economist Oscar Espinosa Chepe recommends:
“With respect to the return of property to former owners, we believe that the Cuban reality suggests different methods. First, in the case of dwellings, we are in favor of the mass granting of property, with all the responsibilities inherent in this, to those who are either the current lease holders or the people who enjoy the use of the property today without paying rent.
“With regards to the former owners, we agree that from the moral point of view the fairest approach would be to return these properties to their former owners, but given the time that has passed and the transformations in these properties, some of which no longer in exist, the best solution would be to pay these people, which could be done with bonds that could be used to purchase legal properties.” [8]
Property on the Malecon in Havana, reduced to a facade.
For his part, the economist Jorge Sanguinetty considers:
“The restoration of property rights in Cuba has two closely related aspects, restitution or compensation of old properties to their rightful owners and the creation of new properties. Both parts of the process represent the two poles of the recreation of the private sector of the economy, which would include the opening of new businesses and privatization of the state investments created by the revolutionary government, which were never private.
“This is a highly complex problem that ideally requires good prior preparation and a large administrative and executive capacity to permit rapid resolution of outstanding claims. If this problem is not resolved, the recovery of the Cuban economy could become significantly delayed because it would not have created the right environment to attract new investment to expand the productive capacities of the country and revive its economy.
“A group of properties that presents a special challenge is that of urban real estate, especially homes that were used for rental housing or housing direct for its owners that are now occupied by other families or individual tenants. It is obvious that the transition government cannot put all these people in the street at the time when it takes over an impoverished and indebted economy, and therefore one of the solutions that could be contemplated to recognize the property rights of prior owners is to provide instruments of debt, bonds or tax exemption certificates negotiable in the financial markets.” [9]
Compensations is a very useful method through which the government can make up for the damage to many original owners. Clearly, in our country, this method cannot be implemented without delays, given the serious economic constraints in which we live. But as the Cuban economy begins to open up there will be major opportunities to realize such compensations. However, there are methods such as exemption from taxes that could be effective in some cases, particularly where the investor is a former owner stripped of their property.
2) Sales to the public
Direct selling has two basic objectives. First, to increase State revenues, which currently are strongly depressed. Second, to immediately attract investors interested in jump-starting these underutilized assets, and bringing the know-how to do it.
It’s important to appreciate that Cubans living on the Island do not possess sufficient capital to buy property at current prices. Given that at the moment when sales begin there will be a lot on offer in an environment of scarce capital, prices should not reach very high levels, enabling many citizens to become owners of new spaces.
In this situation it is essential to contemplate the issue of corruption. In the former socialist block, foreigners and other buyers with suspect capital, such as corrupt officials, organized crime and new “men of business,” had the largest sums of money to participate in such sales.
Another important issue is the efficiency of the process, because the proceeds from the sales should never report more losses than gains to the government. The valuation agency created by the German government collected DM 50 billion through sales, and spent no less than DM 243 billion in the privatization process. [3] In that case the sales were heavily concentrated in businesses in the former East Germany.
3) Sales to employees
The sale of commercial space and services to employees at preferential prices is an option that is a priori attractive. However, it can create serious problems of corruption, especially when managers or executives are associated with some group in power that allowed them to obtain these personal benefits.
From a political standpoint this variant is popular among the population. But there are also some disadvantages, as the companies often have deficient management, given that the new conditions of a market economy differ radically from those of a centrally planned economy. The property rights may become diffuse and could be usurped by the directors.
In some countries, this was an administratively quick method of sale, but on the other hand the workers and directors blocked the process.
There are different possibilities, like that applied in Russia, where 20% of the shares were given to the directors, 40% to the employees, and the other 40% sold directly. [3]
4) Sales en masse
This method is implemented through the distribution of bonds or “vouchers,” for free or for a nominal price, which can be exchanged for shares of the companies or properties sold. This allows rapid sales, not only of medium but also large-sized businesses, and offers citizens the possibility to become new owners, which was widely accepted.
This form of release facilitates a major distribution of direct sales. However, due to the dispersed ownership, obstacles appeared in the direction and management of the companies.
In countries such as the Czechoslovakia investment funds were created, which were still closely linked to the State-owned banks making null, to a large extent, the final result of the process.
This building collapse in Havana killed 3 and left one more vacant site in the capital. Source: www.hispanicallyspeakingnews.com
Proposal to release idle lands and ruined properties
Our proposal seeks to make available as soon as possible spaces that represent frozen capital and that have been reduced, for years, to mere ruins, tenements full of rubble, or vacant land covered with marabou weed. These properties should have Cubans as the main beneficiaries, principally those living on the Island, although clearly they should be part of the attraction for foreign investors. Their exploitation will allow many other sectors to receive a strong impetus from the market that would be generated.
The cornerstone of the proposal is to auction all the vacant lands, as well as dilapidated or underutilized urban properties. The auction process can be planned in three consecutive steps:
a) Sale to nationals living in the country
b) Sale to nationals not living in the country
c) Sale to foreigners
Note: This method ends up being a mix of mass and direct sales.
Let’s look at some of the practical procedures it will be necessary to define:
1) Create the appropriate committees, charged with organizing and executing this auction process.
2) Develop a clear definition of the properties to be auctioned.
3) Prepare a census of all the properties, tenements and land that may be subject to auction.
4) Publish the properties and lands with their characteristics and minimum prices.
5) Establish periods for each one of the three stages.
6) Establish a limit, for the number of properties to acquire, and their dimensions and values.
7) Publicize the date, as well as all the information related to the auctions. They will be hosted by municipalities and announced a minimum of 30 days in advance.
8) Offer a special price to all those who now hold lands under usufruct.
9) After the sale a database must be prepared with all the information regarding the sales and final price at auction. All this information should appear in physical copies as well as on the Internet.
10) The entities responsible must keep control of all the income derived from the sales and the use of these funds in their communities.
Once citizens have the title deed of the property in their possession, they can sell the property acquired if they wish. This will allow them to obtain some capital immediately, which can be reinvested or used at their convenience.
Compensation must be established for all those whose were deprived of their properties unjustly, and the most effective methods for this process must be considered, assessing the economic conditions of the country. This compensation, as suggested by some experts, could range from cash to the granting of bonds and shares.
Environment for the full operation of the process
The creation of an enabling economic environment is a key factor to ensure that the process of releasing property has the desired effect. A new system of property ownership does not, in itself, constitute a guarantee of success for such transformations. Other factors are needed to guarantee that the market mechanisms function efficiently. To mention some of them:
1) Legal framework
The first aspect that must be prioritized is the creation of a legal framework that guarantees full rights of ownership. It should create mechanisms for the quick transfer of property titles. Another aspect that should be given special attention is not to allow the process to become, in one way or another, a piñata used by influential groups, such as government officials, leaders of the Cuban Communist Party (PCC), or chiefs of the Cuban military apparatus.
Laws must also be established that guarantee a competitive market. It is important that the new entrepreneurs can fully develop the potential of the newly acquired properties.
2) Financial market
The creation of a financial market is an essential element for the development of a modern economy. It is important to create an agency charged with the sales process that displays each transaction in a transparent way, as well as the final destination of the funds received by the government.
It is necessary to begin with the granting of credits to new microenterprises. State companies should not provide soft credits, which hinder the growth of the incipient private sector. The use of soft credits could encourage alarming levels of inefficiency and corruption.
3) Infrastructure
The State must free up the issuance of licenses for manufacturing, and end its monopoly on the production of construction materials, which would ensure that the real estate sector would take off. It must end the monopoly on imports and exports and liberalize these sectors. This would allow a new market to be supplied with products lacking in the national market, materials which are indispensable to jump-start construction.
On the other hand, it is important to stress that this entire process must be undertaken with due respect for the norms of urban planning.
The liberalizing of these resources would be an initial step to begin to reverse the state of deterioration suffered by an immense number of buildings throughout the country. There is an urgent need to at least halt the advanced state of destruction of the national infrastructure. The resources acquired by the State in this sales process should be used immediately for this purpose.
4) Transparency
Transparency has become an essential element of contemporary societies. It is vital that citizens have full knowledge of and participation in a process of such transcendence as a change in the structure of ownership. Mechanisms should be created so that citizens have all the data on the properties and lands sold.
The use of new technologies is a recourse that can play a very important role in this transparency. Unlike 20 years ago, when there was no Internet, today it is possible to consult, from a private computer, all the data pertaining to governments and their institutions; this, without a doubt, greatly reduces the levels of corruption.
5) Tax system
A modern tax system is an essential element that guarantees not only that the State can receive the necessary resources to maintain its social obligations, but also that it will not put the brakes on the growth of the new entrepreneurial sector.
The taxes must be reasonable and easy to pay, and tax evasion must not become the norm. An interesting example of a tax system was implemented in Estonia after its separation from the former Soviet Union, when it adopted a uniform tax of 26%.
Conclusions
The cornerstone of any reform in our country should be the transition to a democracy and the reestablishment of all individual rights. The economic transformations should be directed to stimulate private initiative. It is essential to prevent small corporate groups from being able to exercise a monopoly on the Cuban market, which would accentuate the exhaustion and pessimism within Cuban society, risking a worsening of the grave social problems already facing us.
Every entrepreneur should be able to use the tools of a free market economy, otherwise the failure of the reforms is predestined. To think of a transformation in the style of China, in which political rights are of no importance, makes no sense in our country. Cuba should not be seen as a maquiladora – a country of off-shore factories employing low cost labor.
The new "self-employed" in Cuba. Source: www.primaveradigital.org
The economic transformations should be directed to create a new sector of micro, small, medium and large enterprises. It is unacceptable to continue to live in conditions or penury and ruin, when the country has the necessary potential to be a prosperous and thriving nation. The economy has to be immediately open to the productive sector and to make this happen the property ownership system needs to be fully implemented.
To ensure a greater distribution of wealth it is essential that Cubans hold their respective titles, which creates the possibility of granting credits among other benefits. In parallel, it is necessary to create a financing system that allows taking advantage of the process of liberalization. This, by itself, does not guarantee economic growth if the appropriate economic environment is not developed.
If Cubans do not have the opportunity to acquire these dilapidated properties, empty tenements and idle lands, we can expect that in a not-too-distant future they will be negotiated in a non-transparent way with large businesses without any bidding process. In this case we will see a vast majority of Cubans playing the role only of spectators, left completely outside the scheme of property ownership. Experiences elsewhere show that in these cases the bribery of state officials ends the legitimate yearnings of the population to possess some capital or property, to enter the new market reality, and this can lead directly to a failed transition.
The new "self-employed" in Cuba. Source:blog.mycubanstore.com/
On the other hand, the type of social dynamic that the current government is generating in the short, medium and long terms should be looked at with particular concern. The currently authorized forms of “self-employment” only allow Cubans to participate in marginal third-world-style activities such as street hawking, food preparation, kiosks selling schlock goods, and other micro-enterprises. With the exception of bed-and-breakfasts and small family restaurants – which do serve tourists, but at the margin – none of these activities link to any of the profit centers of the economy, nor are they supported by wholesale markets, and they do not have connections of any kind to global commerce, all of which remain in the hands of the State and, significantly, in the hands of the Revolutionary Armed Forces.
Furthermore, street vending and similar “professions” are an extension of the existing informal sector – i.e. black market – already overdeveloped as a survival strategy in our country. It is important to bet our future on well-developed fully established businesses that can support an entrepreneurial class and a broad tax base, rather than grow an army of tax evaders.
Thus, the current track is an extremely negative policy, designed to keep Cubans permanently at the margins of the country’s economy. Studies in other countries demonstrate the deleterious impacts of this type of economy.[10]
We should all be very aware that whatever path is followed at the current moment will generate the economic structure of our economy for years to come. We have the resources and the human capital to have a “first-world” economy, why shouldn’t we create one?
Bibliography
1) Decree Law 259. Official Gazette No. 024. 2008.
2) Decree Law 288. Extraordinary Official Gazette No. 035 of November 2, 2011.
3) Aslund, Anders. Building Capitalism. Cambridge University Press.
4) Property Compensation Law to take effect in Hungary, BNA International Business August, 1991.
5) Sariego, Jose M and Gutierrez, Nicolas J. Righting Wrongs Old Survey of Restitution Schemes for Possible Application for a Democratic Cuba to. April 2, 1989, p.1.
6) Jorge Antonio. Privatización, reconstrucción y desarrollo socioeconómico en la Cuba post-Castro (Privatization, reconstruction and economic development in post-Castro Cuba).
7) Babun, Teo A. Preliminary study of the Impact of the Privatization of State-owned Enterprises in Cuba.
8) Espinosa Chepe, Oscar. La situación actual de la economía cubana y la posible utilización de la experiencia eslovaca en el tránsito a una economía de mercado (The current situation of the Cuban economy and the possible use of the Slovak experience in the transition to a market economy).
9) Sanguinetty, Jorge. Cuba realidad y destino (Cuba reality and destiny). Editorial Universal.
10) Perez Calderon, Rebecca. Algunas consideraciones sobre el comercio informal en la Ciudad de México (Some thoughts on informal trade in Mexico City).
Jose Marti -- variously known as "The Master" and "The Apostle" in Cuba
It has never been a good practice to carbon copy what has been done in other countries, particularly in the political, economic and social areas, to apply it in one’s own reality.
It has been said time and time again that every people, with its own reality, idiosyncrasies and history, is unique unto itself and that, for the most part, an implementation of its dynamics somewhere else, almost always results in failure.
We have seen that in our own country; they wanted to faithfully introduce the Soviet model to our problems, and here are the results: you only have to look around.
And, disgracefully, the most visionary of all of us warned of this danger a long time ago:
Each people is healed according to its own nature, which requires different dosages and even different medicines depending on the presence of this or that symptom in their illness. We need neither Saint‑Simon, nor Karl Marx, nor Marlo, nor Bakunin, but the reforms that suit our body politic.
But we must be careful. We don’t need to reinvent the wheel.
Exploring other realities, analyzing the solutions, clarifying how complex issues were addressed by other administrations, governments or peoples can be useful when we are facing our own problems.
The Master — Jose Marti — did not ignore this other reality when he added, to the phrase quoted above:
To assimilate what is useful is as wise as it is foolish to imitate blindly.
And this is precisely what happens when we study the history of development of individual rights in the world, full of beautiful and magnificent examples through the centuries; beginning in ancient England, passing through the 13 colonies in North America and arriving in the restless nineteenth century France.
Moreover, there we have what, in my opinion, is the greatest genius on the issue of rights of all time: the Universal Declaration of Human Rights and the UN Covenants derived from it.
In these days is repeated with insistence in Cuba, to the delight of some and the disbelief of others, that this is a time of change in the life of the nation.
Perhaps, then, we start by analyzing which — in the judgment of attorneys for the Cuban Law Association — are the reforms that suit our body politic.
Our Position: Félix Navarro, José Daniel Ferrer, Librado Linares, Antonio G. Rodiles, Wilfredo Vallín
