Cubalex, M.sc. Laritza Diversent, 3 August 2018 — The constitutional reform will recognise Habeas Corpus, as it is applied in domestic law. An obviously ineffective procedure. It does not provide protection against arbitrary detention or enforced disappearance. Nor does it comply with international standards in terms of due process.
“No-one who is imprisoned considers that it is in order,” was José Luis Toledo Santander’s cynical comment. “Everyone detained by the police considers himself innocent and to have been unfairly detained,” adds the deputy and member of the editing commission of the constitutional text. “That implies,” he concludes, “that every person detained by the police would be able to seek a writ of Habeas Corpus.”
Abuse of power and excess of discretional authority
The agents of police and security (Ministry of the Interior) have minimal training and excessive authority. After being recruited and a 6-month course, they are ready to exercise power and enjoy the impunity guaranteed by their uniform and their licence.
Whether on the orders of a superior, personal dislike, or a battle for territorial control — it’s all the same. No-one who has a business escapes the payment of tribute to the authorities. The evidence presented and declarations to a tribunal, whether true or not, carry more weight than the law itself.
In such circumstances, it is logical that everyone detained by the police considers himself unfairly detained. That’s the logic in a country where guarantees of due process do not exist.
Do you know that the police can interpret and apply, acting as judges, 27% of the offences in the Penal Code?
Without remission of the case to a tribunal, they are authorised to judge it, and apply a fine. When they exercise this power, they do not inform the detainees that, in the event of their accepting it, they are recognising their guilt (loss of the presumption of innocence) and abandoning the right to be judged by a tribunal.
Absence of independent, impartial tribunals
Do you know that the Committee against Enforced Disappearance (an office of the United Nations) is concerned that the subordination of the tribunals to the National Assembly and the Council of State affects the independance of the judiciary?
Yes, judges are subject to all types of political influence. Both of these state organs are charged with appointing, promoting, suspending, and dismissing them. A judge can be dismissed from a tribunal, for not being willing to join the Cuban Communist Party, which subjects them to conflicts of interest and intimidation.
Total absence of the right to defence and therefore the presumption of innocence
Did you know that the national tribunals only accept legal service contracts issued by the Collective Law Firms (Legal practices supervised by the Ministry of Justice)?
Yes, in practice they are obliged to contract defence lawyers from an organisation which is unique in the country and ideologically committed to the political group holding power in the country. This situation affects the right to freely select your lawyer.
Nor are the ONBC lawyers are not independent. They are subject to interference, pressure and undue influence from the authorities who intervene in the penal process, which prevents them from performing dilligently and fearlessly, acting against the interests of their clients.
First published in Cubalex
Translated by GH