Cubalex, 21 June 2024 — Sulmira Martínez Pérez could face a ten-year prison sentence, according to the provisional findings of the Prosecutor’s Office, for expressing herself on social media against the Cuban regime and advocating peaceful protest.
Prosecutor Edward Roberts Campbell has requested a combined sentence of ten years’ imprisonment for the 22-year-old, currently held in the Western Women’s Prison known as El Guatao in Havana.
Does it adhere to the principles of legality and fairness?
The legal characterisation offered by Prosecutor Edward Robert Campbell to the Chamber for Crimes against State Security of the People’s Provincial Court of Havana, in the second of his provisional conclusions presented on 24 April 2024, is incorrect. The legal grounds for this assertion are set out below:
The prosecutor has legally classified the facts described in the first of his provisional conclusions as constituting the crimes of Contempt (Articles 185.1 and 2) and Against Constitutional Order (Article 119.3 in relation to 119.1) of the Criminal Code (Law 151/2022). In this regard, he said:
“(With respect to acts committed before the entry into force of Law 151. It is integrated into the offence provided for in Article 99 of Law 62, which has the same sanctioning framework)”.
The prosecutor proposed, and the court accepted, a legal position that violates the principle that criminal laws cannot be applied retroactively. This principle has an exception: it can only be applied retroactively when the law is more favourable to the accused person.
In determining which law is more favourable, the court must consider which law produces the more beneficial result for the accused person, objectively assessing the facts of the case and the laws in force at the time of the decision. It is not a matter of comparing individual provisions of the two laws, but of assessing their entire content, including the penalty, the elements of the offence and the aggravating circumstances of criminal liability. For example, if in the specific case it is possible to apply a penalty of limitation of liberty or correctional work without detention, the current Penal Code would be more favourable than the repealed one, even if it provides for harsher penalties in other respects.
The court must consider both theoretically co-existing laws, assessing which one is more applicable to the particular case, and not only which one is in force.
How should the court proceed in this case?
1. Hypothetically apply the criminal law in force at the time the crime was committed and subsequently do the same with the law in force at the time of the trial.
2. Compare possible outcomes and choose the one that is more favourable to the accused person.
3. The comparative examination should conclude with the choice of one of the two laws, the old or the new one.
It is wrong to apply provisions of both laws simultaneously, as this creates a new law made to suit the prosecutor, whose aim is to impose harsher sanctions to punish dissent, censor free speech and restrict the right to protest.
Conclusions
Sulmira, like everyone else in Cuba, is unable to exercise her right to peaceful demonstration, despite the fact that this right is enshrined in article 56 of the Constitution of the Republic. The main reason is that the Cuban government, despite its legislative promise, has not enacted a supporting law that would allow the full exercise of this fundamental right.
This omission allows the criminalisation of any citizen action of criticism, protest, disagreement and opposition to the authorities, who are responsible for the economic crisis, violence and total decadence that the island is experiencing today.
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Translated by GH
