Enemy Propaganda

Dangerousness

Disrespect

Crimes Restricting Freedom of Movement

Illegal Exit

Illegal Entry

Restrictions on Residence

Crimes Restricting Freedom of Association

Criminal Association

Additional Crimes Subject to Abusive Application

Restrictions on the Right to a Lawyer

Collective Law Firms

Right to Know Charges and Review Evidence of Alleged Crime

Appeals

New Legal Measures Expand Government Control

Regulations for International Press

Decree 217: Heightened Control of Internal Movement

http://www.cidh.oas.org/annualrep/2000sp/cap.4b.htm

Enemy Propaganda

Criminal Code (OAS Report)

Article 103 of the Criminal Code in fact provides:

1. Any person who:

a) incites against the social order, international solidarity or the communist State, by means of oral or written propaganda or in any other way;

b) prepares, distributes or possesses propaganda of the type referred to in paragraph (a) preceding; shall be punished with one to eight years imprisonment.

2. Any person who disseminates false news or malicious predictions likely to cause alarm or discontent among the population, or public disorder, shall be punished with one to four years imprisonment.

3. If mass communication media are used for performance of the acts referred to in (1) and (2) of this article, the penalty shall be seven to fifteen years imprisonment.

4. Any person who permits utilization of the mass communication media as referred to in (3) preceding shall be punished with one to four years imprisonment.

This legislation has enabled the Cuban Government to consolidate a policy of systematic harassment against any form of dissent. During the period covered by this report, the IACHR has in fact received extensive information on various methods of harassment directed against individuals or groups devoted to defense of human rights or engaging in political activity. This harassment generally takes the form of accusations, disciplinary measures or imprisonment. The legal grounds most commonly invoked are contempt, unlawful association, enemy propaganda, unauthorized production of printed materials, rebellion, etc. The IACHR has also received information on the practice of a new form of harassment against persons who express, either orally or in writing, their dissatisfaction with the current political system: economic offenses. This method derives from the country's serious economic situation, as a result of which people are often obliged to purchase essentials on the black market. One example of this practice is the case of the President of the Cuban Human Rights and National Reconciliation Commission, Elizardo Sánchez Santacruz, who was sentenced to six months house arrest in July 1994 for allegedly having in his possession a larger amount of fuel than was legally permitted. The IACHR has received information to the effect that 918 persons have been convicted of offenses with political connotations or for having exercised their right to freedom of expression. This list does not include names of persons sentenced for the crime of "dangerousness" or for attempting to leave the country illegally.
http://www.cidh.oas.org/annualrep/94eng/94ench4.htm#CUBA

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Dangerousness

THE CONCEPT OF DANGEROUS STATE IN THE CUBAN CRIMINAL CODE

Once again, the Inter-American Commission on Human Rights draws attention to the concept of "dangerous state" in the Cuban Criminal Code and to the way in which the Government uses the offense thus defined as legal justification for application of security measures before a crime is actually committed, and after the event, for restrictions that include imprisonment in labor camps and penitentiary establishments for a period of up to four years.

The Cuban Government in fact justifies detention of opponents of the regime under Article 72, which defines "dangerousness" as "a special inclination on the part of a person to commit crimes, as demonstrated by behavior that is clearly contrary to the standards of communist morality". Article 74 expands on this provision by spelling out that "a dangerous state is present when an individual displays some of the following signs of dangerousness: (a) habitual drunkenness and dipsomania; (b) drug addiction; (c) antisocial behavior". In the same way, "an individual who habitually breaks the rules of social coexistence by acts of violence, or by other provocative acts, violates the rights of others or by his general behavior breaks the rules of coexistence or disrupts the order of the community or lives, as a social parasite, off the work of others or exploits or practices socially reprehensible vices, is considered to be in a dangerous state on account of antisocial behavior".

For its part, Article 75 states that "an individual who, without being in any of the dangerous states listed in Article 73, by his links or relationships with persons potentially dangerous to society, other persons and the social, economic and political order of the communist State, could become prone to crime, will be warned by the competent police authority with a view to preventing him from carrying out socially dangerous or criminal activities".

If an individual displays one of the signs of dangerousness listed above certain security measures may be applied, which can be subsequent to or prior to the actual commission of an offense. In the case of prior security measures, Article 78 specifies that the individual declared in a dangerous state can be required to undergo therapeutic or reeducation measures or may be placed under surveillance by the National Revolutionary Police. According to Article 79, one therapeutic measure is admission into a care, psychiatric or detoxification establishment. The reeducation measures are applied to antisocial individuals and consist of admission into a specialized labor or study establishment and assignment to a labor collective for monitoring and guidance of their behavior. The minimum period of these measures is one year and the maximum four years.

These provisions of the Cuban Criminal Code are taken further by Decree Nº 128, issued in 1991. This decree specifies that the declaration of dangerousness prior to commission of any offense shall be decided upon by summary procedure, detailed as follows. The National Revolutionary Police are to prepare the dossier with the report of the officer involved, the testimony of neighbors who attest the individual's behavior and copies of any official warnings given. Once the dossier is made up, the Police are to submit it to the Municipal Attorney, who must decide whether to place it before the Municipal People's Court for determination of the degree of dangerousness of the individual concerned within two working days of receipt of it. Within this time period the Court shall decide whether to institute any other proceedings, which must be done within five working days. If the Court considers the dossier complete it will set the date for the hearing at which the parties are to appear. The Municipal Court is to pronounce judgment twenty-four hours after the hearing.

During the period covered by this Annual Report complaints have been received concerning persons arrested by State agents under "dangerousness dossiers" who have subsequently been jailed for up to four years. It should be noted that the Criminal Code does not specify imprisonment as one of the possible security measures. The IACHR has been informed that the type of procedure employed--summary--makes it impossible for the accused to present an adequate legal defense since the preset sequence to be followed is too tightly scheduled to give time for contacting a lawyer or for preparing a defense.

It has been observed that the social protests sparked by the country's serious economic situation are generally repressed by this method and that the Government uses it not only as a means for preventing common crime but also to curb persons suspected of activities contrary to the official ideology.

The case of Abel Jesús Acosta, a member of the Human Rights Party in Villa Clara, will serve as an example: He was arrested on October 4, 1993, and after a trial held on the 6th of that month he was sentenced to two years imprisonment for being "dangerous", because he had met with "counter-revolutionary elements". The Commission was informed that Mr. Acosta had met with a Canadian Journalist.

In the same way, Héctor Eduardo Pedrera Miranda was arrested on September 16, 1993, as he left his home in Alta Habana and taken to the local National Revolutionary Police Office. On the 23rd of that month he was given a summary trial and sentenced to four years imprisonment. Apparently the prosecutor accused him of having a record of illegal departure from the country--an offense for which he had already paid the penalty--which meant that he was not in sympathy with the revolution and was accordingly "dangerous". The Commission was informed that the defense attorney was not allowed to see the accused's dossier and was only permitted to talk to him a few minutes before the sentence was pronounced.

Other complaints received report that:
Jorge Luis Dominguez Riera, an activist in the Cuban Human Rights Party, in the locality of Regla, was arrested on October 15, 1993 and taken to the Technical Investigations Department in Havana for having taken part in an anti-government demonstration. On the 18th of that month he was sentenced to four years imprisonment as dangerous. Mercedes Parada Antunes, a member of the Political Rights Defense Association, was arrested on September 26, 1993, on a charge of dangerousness. On October 8 of that year she was tried before the Marianao Municipal People's Court in Havana and sentenced to two years imprisonment.

The above accounts confirm that there is no restraint in Cuba on the arbitrary exercise of government powers, since the right to due process seems to be one of those most frequently violated, both in substantive and in procedural terms. Thus, the "special inclination" to commit crimes referred to in the Cuban Criminal Code amounts to a subjective criterion used by the Government to justify violations of the right to individual freedom and due process of person whose sole crime has been an inclination to hold a view different from the official view.

In sum, the definition of an offense that makes it possible for a person to be punished before or after having committed a crime, the subjectivity employed by the Criminal Code in describing these crimes together with the security measures, and the summary nature of the proceedings which inevitably entails a lack of guarantees and the political considerations governing them, constitute serious violations of the rights set forth in the American Declaration of the Rights and Duties of Man.

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Disrespect

In the past two years, Cuban prosecutors have relied heavily on the provisions against enemy propaganda and contempt for authority (desacato) to silence dissent. Prosecutors also have tried dissidents for defamation, resisting authority, association to commit criminal acts (asociación para delinquir), dangerousness (elestado peligroso), and other acts against state security (otros actos contra la seguridad del estado) during this period. Cuba's prisons confine scores of citizens convicted for the exercise of their fundamental rights, or in some cases, convicted without ever having committed a criminal act, for dangerousness. Cuba also detains nonviolent political prisoners who were tried for crimes against state security, such as enemy propaganda, rebellion, sabotage, and revealing secrets concerning state security. Individuals convicted of state security crimes for having exercised their fundamental rights often are serving sentences of ten to twenty years. Prisoners also are wrongfully serving sentences for contempt for authority and illegal exit. The government's inhuman treatment of its detainees, which in some cases rises to the level of torture, is detailed below at General Prison Conditions, Treatment of Political Prisoners, and Labor Rights: Prison Labor.
http://www.hrw.org/reports/1999/cuba/Cuba996-03.htm#P782_123696

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Crimes Restricting Freedom of Movement

Cuban law includes measures that restrict freedom of movement within the boundaries of one's country and the right to leave the country, in violation of the Universal Declaration of Human Rights, which states that: "Everyone has the right to leave any country, including his own, and to return to his country."⁹⁵ The 1997 law created to control migration to Havana is discussed below, at Decree 217: Heightened Control of Internal Movement. Illegal Exit The Criminal Code provision against illegal exit punishes individuals who, "without completing legal formalities, leave or take actions in preparation for leaving the national territory" with one to three years in prison. Someone who "organizes, promotes, or incites" an illegal exit can be punished with two to five years imprisonment, while someone who "provides material assistance, offers information, or in any way facilitates" an illegal exit, risks one to three years behind bars.⁹⁶ In May 1995, Cuba reached an accord on emigration with the United States in which it pledged not to apply the illegal exit law against repatriated Cubans. Cuba reportedly sentenced Abel Denis Ambroise to fourteen months for illegal exit in October 1996, but Human Rights Watch does not know of further prosecutions since that time. Cuba's failure to revoke this law, however, seriously calls into question its willingness to legitimize the basic right of its citizens to leave their country.

Beyond the prison terms served by the scores of Cubans convicted of illegal exit, this law has contributed to numerous tragic efforts to flee Cuba surreptitiously. The government's apparent ire at those who attempted to circumvent the illegal exit law reached its peak with the government's March 1994 sinking of a tugboat, the 13 de Marzo, that was loaded with fleeing Cubans.⁹⁷

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Illegal Exit

The Criminal Code provision against illegal exit punishes individuals who, "without completing legal formalities, leave or take actions in preparation for leaving the national territory" with one to three years in prison. Someone who "organizes, promotes, or incites" an illegal exit can be punished with two to five years imprisonment, while someone who "provides material assistance, offers information, or in any way facilitates" an illegal exit, risks one to three years behind bars.⁹⁶ In May 1995, Cuba reached an accord on emigration with the United States in which it pledged not to apply the illegal exit law against repatriated Cubans. Cuba reportedly sentenced Abel Denis Ambroise to fourteen months for illegal exit in October 1996, but Human Rights Watch does not know of further prosecutions since that time. Cuba's failure to revoke this law, however, seriously calls into question its willingness to legitimize the basic right of its citizens to leave their country.

Beyond the prison terms served by the scores of Cubans convicted of illegal exit, this law has contributed to numerous tragic efforts to flee Cuba surreptitiously. The government's apparent ire at those who attempted to circumvent the illegal exit law reached its peak with the government's March 1994 sinking of a tugboat, the 13 de Marzo, that was loaded with fleeing Cubans.⁹⁷

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Illegal Entry

While Cuba has unquestionable authority to control its national borders, the broadly-defined crime of illegal entry would allow prosecutions of Cuban citizens attempting to return to their homeland. Someone who enters Cuba "without completing legal formalities or immigration requirements" risks one to three years of imprisonment.⁹⁸ Former political prisoners that Cuba forced into exile could risk prosecution for failing to comply with "legal formalities."

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Restrictions on Residence

Cuba also employs the criminal penalty of banishment (destierro), defined as "the prohibition from living in a determined place or the obligation to remain in a determined place." Such residence restrictions may be used to penalize persons convicted of a crime in all cases where "the presence of the sanctioned person in the place is socially dangerous," and can last from one to ten years.⁹⁹
http://www.hrw.org/reports/1999/cuba/Cuba996-03.htm#P782_123696

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Crimes Restricting Freedom of Association

The Criminal Code highlights the conditionality of Cuba's constitutional guarantee of free association. Cuba uses alleged crimes against state security as its most aggressive weapon against nonviolent opposition organizations, but the Criminal Code offers the government additional legal grounds as well for repressing freedom of association. Failure to Comply with the Associations Law

Cuba's Associations Law effectively bars any genuinely independent association from receiving government authorization, as discussed below. Those involved in associations not registered under the law risk one to three months of imprisonment, while directors risk three months to one year in prison.⁹² If members or directors participate in meetings or demonstrations, they face, respectively, one to three months, or three months to a year, and fines.⁹³

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Criminal Association

Cuba's law against criminal association penalizes groups of three or more persons who form a band to commit crimes with a one-year to three-year prison term. While this provision may serve legitimate ends, its application against dissidents violates the right to free association. The second section of the law vaguely states that groups planning "to provoke disorders... or commit other antisocial acts" could be punished with three months to one year of imprisonment.⁹⁴ The overbroad nature of this provision, which does not require a criminal act, has facilitated its politically discriminatory application.

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