Will It Be Possible To Act Against the First Usurper of the Cuban Communist State?

For Sale or Trade. With today’s massive migration, many Cubans find great difficulty in selling their homes. From martinoticias.com

14ymedio bigger14ymedio, Elías Amor Bravo, Economist,  3 April 2023 — The illegal occupation of homes and premises is a symptom that things are not going well in an economy. It is also a process that has been growing in Cuba in recent years, which has led communist leaders to get out of the collectivist and egalitarian script. Let’s see how.   After the triumph of the so-called revolution, when the most devastating action against private property rights in the world was perpetrated by a country, the usurpation of homes became commonplace in Cuba, encouraged by revolutionary leaders. Families who fled the country, leaving all their assets behind by the confiscatory actions and the political persecution unleashed by Castro terror, contemplated from a distance how their homes and premises were occupied by other people who had nothing to do with their family or heirs.

The illegal occupation became legal due to the de facto acceptance of the new regime. In other cases, the new leaders were “giving away” the homes left by their former owners to people for the mere fact of being faithful to the new political leadership of the country. Without records, notaries, or anything like that, there was a real usurpation of the old housing property in Cuba, first by the state and then by people who were never its owners. The phenomenon reached such a dimension that for many years the regime played with the false image of the threat that a massive return of exiles could pose for the precarious occupants of the homes that were not theirs.

The chaos caused in revolutionary times was maintained until the approval of the communist constitution of 2019, in which article 42 recognized the right of people to the protection of the home, establishing the prohibition of the entry of others without the authorization of the person who inhabits it, unless such entry was made by express order of the competent authority and with the formalities of the law.

Subsequently, Criminal Code Law No. 151 of 2022 was published, which introduced the crime of usurpation, provided for in article 421, to address the increase in housing occupation by some individuals or groups, who, taking advantage of the temporary absence of the owners or cohabitants, committed the crime. A phenomenon that seems to have grown exponentially in recent years, as a result of housing shortages, the deterioration of existing homes and the low incomes of the population, especially among vulnerable groups. The alarm has reached the regime, observing that not only supposedly private homes are occupied, but also state premises where services for the community are provided, such as medical offices, social housing and warehouses, among other properties that have been abandoned by government neglect.

In this way, the regime wants to face the crime of usurpation with an approach commensurate with its interests. For example, before the entry into force of the current penal code, only those who entered other people’s homes or premises through violence or intimidation were prosecuted for said crime. Not those who didn’t do it in that way. The housing officials and the commissions to confront the illegalities managed their extraction from those places after declaring them illegal occupants, which was interpreted as a softer and more comprehensive treatment toward practices that they now want to eliminate.

And why this change? Well, basically because of the spectacular increase that has been occurring in these occupation practices and, with it, the harmfulness and aggressiveness of behaviors in any modality, which requires an intervention of criminal law in the solution of these conflicts aimed at protecting property as a legal asset. Yes, everything is very correct, but the protection of what property? Of the property previously usurped by the same regime that governs the destinies of Cubans? No. It’s not something to celebrate. It’s unbelievable that this type of approach emanates from an economic system in which private property, although recognized, continues to have a marginal role in the economy as a whole, where the collectivist mentality prevails overwhelmingly.

Thus, the authorities understand that ensuring and strengthening the inviolability of the home, recognized in the constitution of the Republic, is an objective that is related to the current socioeconomic conditions in which Cuba operates, where private ownership of housing is still limited to a maximum of two. It would be good if this measure were applied to all kinds of interference in homes, such as those that state security maintains in the form of repression against dissidents, for example.

But the regime seems to be clear about what it wants and that’s why it gets straight to the point. Only in this way can the publication by the Governing Council of the Supreme People’s Court be interpreted, through Opinion No. 471, of February 15, 2023 (published in the Official Gazette of the Republic of Cuba, no. 17, extraordinary edition, of March 2, 2023) of judicial practice in the processing and solution of these matters. An extensive document that is worth reading in detail.

When the illegal occupation or seizure of a house takes place in Cuba, the authority, once the complaint has been formalized, will immediately inform the administrative bodies responsible for the  system of housing, territorial and urban planning, the community prevention bodies and the municipal administration councils, so that, together with the National Revolutionary Police, they adopt the measures to extract the illegal occupants, thus restoring, with identical immediacy, the broken legality.

We would have to ask ourselves at this point, what is the legality? The fiction created by Raúl Castro or the one before 1959 that continues to be documented in the historical property deeds of the Cuban economy? Remember that the law does not state which one, much less the law of property. The communists have gotten into a good mess, they alone. Will the historical owners of the homes be able to exercise this right of complaint or are they still excluded? Are the squatters the ones who were established without an acquisition or rental operation in the homes and premises confiscated by the revolution?

It is also stated that, against those who execute these illegal acts of seizure, the prosecutor’s office or the court will have one or more precautionary measures provided for in the law, which can be provisional imprisonment in cases where the property is not immediately abandoned, in order to avoid the continuity of the allegedly criminal conduct committed and the restitution of legality. The perpetrators of this crime can have penalties imposed that run from six months to two years, or a fine of 200 to 500 pesos, or both.

If the occupation is carried out with force, violence or intimidation, or the act was a consequence of gender or family violence, or for discriminatory reasons of any kind, the penalty increases from two to five years, or a fine of 500 to 1,000 in installments, or both. A similar procedure will apply when the occupation or empowerment takes place with premises belonging to state entities, and the administrative authorities, holders of these, are responsible for restoring legality, in conjunction with the other groups or institutions that are deemed relevant. What could happen when a holder of historical rights takes action against the state for the premises that have been confiscated and occupied since revolutionary times?

The rule states that criminal responsibility increases if the crime is committed against children under 18 years of age, people with a mental disorder or taking advantage of that situation, or the occurrence of a disaster, public calamity, or any other situation of that nature, or under the ingestion of alcoholic beverages, drugs or substances of similar effects.

When the occupant leaves the property voluntarily, without the need for the aforementioned administrative and preventive bodies to act, the court, at the time of adjusting the sanction, may assess the positive conduct of repentance and, consequently, apply a reduced penalty.

The court, in the execution phase of the sentence, if necessary, will be assisted by the administrative, preventive and police bodies, to extract the person who has illegally usurped a property, and will restore legality, returning it to its owner or legal possessor.

There is no doubt that the situation in Cuba must be very complicated for the regime, the authority, to try to face it with a procedure like this, which has nothing to envy compared to the one that is applied in privately owned market economies. The procedure described circumvents this legal right with ambiguous references to the inviolability of the home and uses dubious concepts, such as “owners or cohabitants.” There is no doubt that the owners of the property usurped by the regime can apply this procedure in defense of their rights. This is another issue that creates important gaps and inequalities in Cuban society. Some Cubans will be able to resort to the procedure in case of occupation or usurpation of their homes; others will continue without a recognition of their rights. In the Cuban communist regime, some things change, but, unfortunately, never in the right direction.

Translated by Regina Anavy


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