Cubalex, Lawyer Julio Alfredo Ferrer Tamayo — I myself, Julio Alfredo Ferrer, filed a complaint against President Miguel Mario Díaz-Canel Bermúdez with the Attorney General’s Office of the Republic (FGR) for the crime of spreading epidemics. José Luis Reyes Blanco, promoted in August 2019 to FGR prosecutor by the State Council, quoted me and responded verbally.
Reyes Blanco argued that the president’s conduct did not constitute an administrative or contraventional offense nor did it typify the crime of Spreading of Epidemic, because there was no contagion or transmission of the epidemic. In view of the institution representing this criminal figure, according to doctrinal definitions, it was a crime of concrete danger.
Such an argument is an error and an attempt to guarantee impunity to public officials to the detriment of the right to equality and non-discrimination of Cuban citizens.
Debate of recognized experts on criminal law on the differences between “abstract danger” and “danger”
According to Doctor of Legal Sciences Renén Quirós Pírez, the classification of offenses of danger into “abstract” and “concrete” by Santiago Mir Puig had obscured the issue. He added that Gonzalo Rodríguez Mourullo understood that it was a contradiction to continue talking about abstract danger where there was indeed a concrete danger.
According to Dr. Quirós, the terminological question did not change the concepts. The jurist defined crimes of “concrete” danger as those in which the danger to the good as protected by criminal law is a requirement of the crime itself or one of its constituent elements. He exemplifies it with the following crime from the Cuban Penal Code:
“It is punishable by deprivation of liberty from three months to one year, or a fine of one hundred to three hundred shares*, or both, for: while having the responsibility of the operation of a drinking water supply for the population, for negligence or non-compliance with established standards, damages the quality of the water, endangering the health of the population.” .
This crime is of concrete danger, because the standard requires that the person who commits it, either by negligence or non-compliance with established standards, damages the quality of the water.
Crimes of “abstract” danger are those in which the act is punished because the behavior itself is dangerous. It adds, that action or omission is prohibited, because it creates a situation in which it is possible to damage the good, as protected by criminal law. The person driving a vehicle in a state of alcoholic intoxication is punished, even if in such a state he does not run over or injure someone or cause damage .
The Danger in the Crime of “Spreading Epidemics”
The Penal Code sanctions with imprisonment of three months to one year or a fine of between 100 and 15 thousand pesos to “in breach of measures or provisions issued by the appropriate health authorities for the prevention and control of communicable diseases and programs or campaigns for the control or eradication of serious or dangerous diseases or epidemics” .
On 27 May 2020, the First Criminal Chamber of the Provincial People’s Court of Cienfuegos ratified the one-year and six-month penalty of deprivation of liberty for Keilylli de la Mora Valle for a number of crimes, including the spreading of epidemics.
The Appellate Sentencing Act says “that the crime of spreading epidemics only requires that the perpetrator fails to comply with the measures provided by health authorities for the prevention and control of epidemics, and the prosecutor argued that, “in the case under review the accused actually failed to comply with one of those measures which is the correct, permanent use of a mask when taking to the streets…”
President Díaz-Canel Bermúdez also did not wear the mask correctly or maintain social distancing, when on November 29, 2020 he participated in the rally called “TANGANAZO”in Parque Trillo. He wore a mask like a bib while delivering a short speech, practically on top of the people gathered there.
All, including the highest executive authority of the Cuban nation, broke the measures or provisions issued by the appropriate health authorities in order to confront Covid-19. The Ministry of Public Health established as mandatory the correct use of the mask outside homes or places of residence, and social distancing in all public and private spaces.
Following the judgment sustained by the First Criminal Chamber of the Provincial People’s Court of Cienfuegos, regarding the danger in the crime of Spread of Epidemic, the President of the Republic must be held criminally liable in the same way as Keilylli de la Mora Valle, who was imprisoned for less dangerous acts than those committed by Díaz-Canel Bermúdez.
The right to equality before the law
The Public Prosecutor’s Office should seek the same legal treatment that it gave to the President of the Republic, to all those who like De la Mora Valle were punished for the crime of Spreading of Epidemic. It should push forward in favor of these others, the Review procedure before the Supreme Court, by requesting annulment of sanctions and compensating those who were unjustly imprisoned.
In the television program Mesa Redonda (Roundtable) of June 6, 2020, the Attorney General of the Republic, Yamila Peña Ojeda, reported that the spreading of epidemics was one of the criminal conducts associated with the pandemic, and that by then they had referred 1,868 criminal cases to the courts. Rubén Remigio Ferro, President of the Supreme Court, noted that 1,856 people were tried and 1,839 sanctioned for failing to comply with health measures to deal with COVID-19.
This issue is of vital importance to Cubans, especially to those imprisoned for the same crime for which the President of the Republic was exculpated. I take this opportunity to convene all the jurists inside and outside the Island to offer their considerations on the corrupt actions of the Public Prosecutor’s Office.
 Paragraph ch) of Section 1 of Article 194 of the Penal Code
 Paragraph a) of Section 1 of Article 181 of the Penal Code
 Paragraph 1 of Article 187 of the Penal Code
 Paragraphs a) and c) of Section “Tercero” of Resolution 128/2020 of the Ministry of Public Health
*Translator’s note: In Cuban legal codes fines are expressed as “shares.” In this way the definition of a “share” can be changed in one place, and all the fines throughout the code are automatically changed.
Translated by Hombre de Paz