Category: Translator: Tomás A.

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

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

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

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

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

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

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

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

Translated by: Tomás A.

August 29, 2010

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

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

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

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

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

Translated by: Tomás A.

August 24, 2010

Minister of Finances and Prices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Translated by: Tomás A.

August 11, 2010

Self-employed

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

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

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

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

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

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

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

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

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

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Translated by: Tomás A.

August 17, 2010

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

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

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

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

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

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

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

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

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

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Translated by: Tomás A.

August 14, 2010

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

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

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

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

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

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

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

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

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Translated by: Tomás A.

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.

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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.

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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.

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Translated by: Tomás A.

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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.

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Translated by: Tomás A.

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