Cubalex, Alain Espinosa, 26 January 2022 — Cubalex responds to statements made by Cuban Chancellor Bruno Rodríguez, who stated that due process is being respected during trials in Cuba. The chancellor, once again, lies; we explain why his pronouncement is false.
The criminal proceedings against opponents in Cuba, in a general sense, are plagued with illegalities. In the specific case of J11 protestors, the first thing to note is the criminalization of a natural human right such as peaceful protest, which is also intrinsically linked to other natural rights such as freedom of expression or equality before the law.
It is important to note that Cuban criminal procedural legislation lacks, intentionally, a correct legislative technique and thus, procedural tools to guarantee the rights of the indicted/accused. In addition, political will on the part of the Cuban government to guarantee its citizens the rule of law is completely absent, an extreme which is reliably demonstrated by the lack of separation of powers.
This includes, among other elements, the complete subordination of judicial powers to the executive branch, in cooperation with the prosecutor. The current president in a public declaration described this as a “unity of power.” Such subordination is by nature antagonistic to the inherent obligations of judges as they execute their judicial functions, and thus creates a real conflict of interest which objectively goes against the rule of law.
Throughout the proceedings referred to above, innumerable transgressions against due process have been observed:
A large majority of the protesters arrested were held for days without judicial processes. Authorities denied family members information about the whereabouts of those arrested; this, according to several international human rights treaties which are incorporated into the national judicial order, constitutes forced disappearance, which is expressly prohibited by international and domestic laws, and specifically, by the national constitution.
The impossibility of access to legal defense, an element which is violated not only by impeding access to a defense from the beginning of the process, but also by impeding access to the hearings, and unsubstantiated decisions which are not communicated in compliance with the established law, depriving the indicted of the possibility of due process to which s/he is entitled as a guarantee of judicial security. Specifically, providing evidence and requesting the exclusion of improperly obtained evidence, and the right to be informed of the charges against him/her are also violated.
The right of the accused to communicate with family and friends is not respected. In many cases it is overtly denied as a means of coercion, to force the prisoner to make self-incriminating statements, or when investigative authorities insist on acting as intermediaries between the indicted and his/her loved ones despite the established legal procedures which explicitly establish that such communication should be direct between the accused and his/her family members.
Authorities’ treatment of the accused represent an assault on their dignity and physical and psychological integrity, often as a way to coerce them and force them to make self-incriminating statements at the time of their arrest.
The use of the following methods has been proven: long periods of confinement in patrol cars exposed to the sun without access to water, and in the case of women complete nudity, forced cavity searches, and denying them personal hygiene for several days while they are menstruating. In other cases, mostly of those held in penitentiaries, the use of physical violence which includes methods commonly referred to as the bicycle, the banana cluster or the use of shakiras [shackles]. All these methods cause severe physical harm to the accused, which is later concealed by authorities by violating other rights, among them the right to visitors or communication. In cases of extremely visible signs, they are isolated in punishment cells until these disappear.
The judicial phase is also plagued by violations, many established in the current, very poor legislation which during quick, summary proceedings allows oral notification of sentences, which prevents the verification of the probative material reviewed by the judges to convict and sanction. This element transcends and directly and negatively affects the accused when it comes time to exhaust their appeals, preventing them from citing substantive grounds for their case to be reviewed by higher courts.
In addition to the aforementioned, during the trials, there has been a complete mismatch between the behavior of the judges and the principles which guide the exercise of judicial function, demonstrating extreme partiality as follows:
Violation of the principle of public debate, by discriminately exercising the power to prevent access to the public to attend the oral trial; limiting entry to one family member per accused, while allowing unrestricted access to members of repressive organizations. In this sense, the violation is more severe because the judges do not even comply with the legal requirements. They make decisions like these, which not only violate the rights of the accused, but also directly affect the principle of transparency which dictates the behavior of public servants and interferes with the real possibility that citizens exercise control over their actions.
Violation of the principle of independent review of the evidence, in the same way that they discriminately and illegally restrict the ability of the parties to provide burden of proof, in the majority of cases allowing an extremely limited number of defense exhibits, especially witnesses. While in the case of the prosecutor, there is no limit on the number of exhibits and witnesses.
All these violations place the indicted/accused in a complete state of defenselessness which affects their family members in two ways:
Indirectly, through all the suffering generated by the unjust and illegal proceedings to which their family members are subjected, in many cases minors who have not reached the legal age to respond criminally. In addition, ever-present is the impossibility of a defense as a result of the partiality with which the process is conducted.
Direct, a product of the harassment to which they are subjected by repressive organizations, especially state security, to prevent them from exercising their natural rights such as freedom of expression, the only way they can bring visibility to the situation faced by their family members to seek justice for them.
Chancellor Bruno Rodríguez Lies About the Trials in Cuba was first published in Cubalex.
Translated by: Silvia Suárez