Liberation or Forced Exile?

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.

Laritza Diversent

Photo: AFP. Lester Gonzalez shows his passport shortly after his arrival in Madrid.

Translated by: Tomás A.