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The Powers of the Minister of Finances and Prices are Unconstitutional and Arbitrary

August 16, 2010 Leave a comment

The Minister of Finances and Prices, Lina Olinda Pedraza Rodriguez, ordered the execution of a process of confiscation against Teófilo Roberto López Licor, 66, based on Legal Decree 149 “on the confiscation of goods and accumulations made through improper enrichment,” known as the Law Against the Newly Rich and its regulation, Decree No. 187, both from 1994.

The state representative demands the confiscation of the goods and income obtained by the López Licor family, during a period of ten years (1998 to 2008). However, the resolution dictated in July 2009 is based on confiscatory record 1349, which does not specify the year of filing. This is a detail that creates doubt concerning the application of the legal decree with retroactive effects, on behalf of an organ of the state.

According to the Constitution of the Republic, non-criminal laws have retroactive effects when they deal with a matter of public interest or utility. Decree Law 149 is of an administrative character and in its operation does not mention that particularity.

The process also affected Pompilio López Licor, 61, and Teófila Elsa Ávila Gutiérrez, 60, brother and wife of Teófilo Roberto, who along with his son, Antonio, were named by the Ministerial decision, as third parties who benefited from the unjust enrichment.

The national deputy for the province of Villa Clara said that the three houses, two cars, a motorcycle and several other items, including appliances exchanged under the “Energy Revolution,” were obtained and legalised by Teófilo, and hidden through subterfuge, under the names of his relatives, without specifying which acts were illegal.

However, no legal action has been directed against members of the Municipal Housing Management of Arroyo Naranjo, in the City of Havana, who acted in the legalisation of the assets and property mentioned.

The confiscated goods amounted to 2,347,834 Cuban pesos and 24 cents. The value was certified by experts who did not specify, as they are legally required to, how the appraisal was carried out, or what the parameters were that were considered, nor the factors that were taken into account in the estimate.

López Licor is self-employed in the regulated activity No. 646 of “maker-seller of food and soft drinks at a fixed point of sale” and has documents from the income tax office substantiating an income of more than 500,000 Cuban pesos.

Teófilo Roberto can also establish receipt of 18,000 convertible pesos (CUC), 450,000 Cuban pesos (CUP), as received remittances from the United States from six brothers and a son living in that country.

However, the Central Committee member of the Communist Party of Cuba, Pedraza Rodriguez, dismissed the evidence provided by López Licor. He argued that the self-employed workforce engaged and the bank documents did not prove that he had actually received the money. The law considers it criminal to use labour that is not family. However, against López Licor, the penalty is not imposed for that reason.

The defendants appealed against the ministerial decision through the Reform Appeal before Pedraza Rodriguez himself, who declared it to be without merit, confirming his decision, in October 2009. On June 22, they appealed to the Head of Finances and Prices, the start of a special review procedure. However, the execution of the penalty of confiscation is not interrupted, although they have not exhausted all the avenues for appeal.

Decree-Law 149 places in a state of helplessness those affected by it by preventing access to the courts for justice against an act of the administration that is harmful. However, the Constitution of the Republic states that “the confiscation of property is applied only as a punishment by the authorities in cases and procedures determined by law.” The Penal Code applies as a specific penalty and accessory for a crime.

However, the Prosecutor, who is responsible for the exercise of public prosecutions on behalf of the state, decided to undertake an administrative proceeding before activating the court for the commission of crimes. In a criminal trial, the relatives of Teófilo Roberto never would have been responsible for the acts of others. The responsibility is individual.

The Cuban Penal Code, in force since 1987, provides that “the confiscation of property does not include … the goods or items that are essential to meet the vital needs of those sanctioned or their close relatives.” Therefore, in criminal proceedings, housing can not be seized.

The validity of this rule in the Cuban legal system does not protect general interests, destroying the trust and security that should surround the whole legal system. Its application violates the legal and penal guarantees offered to citizens and leaves them defenseless against the excesses of the government.

Lina Olinda Pedraza Rodríguez, Minister of Finance and Prices, claimed in her decision that the seized items “are not the result of honest work.” However, the Cuban Civil Code defines unjust enrichment as the transfer value of an estate to another, without legitimate cause. The Economic Control Minister was appointed by the government but is not qualified to administer justice. The powers under Decree Law 149/94 are unconstitutional and arbitrary.

Laritza Diversent

Translated by: CIMF

Is Leaving Cuba a Crime?

April 8, 2010 3 comments

Marta Vazquez’s mother wants her to go to the United States. Marta is currently undecided. You have to choose between achieving your dream or losing your home. That is the choice for future Cuban emigrants.

For several years, Marta has wanted to leave the country. She has never tried illegally. She is incapable of endangering the lives of her two children on the high seas. She entered the raffle for 1998, but no luck.

Her dream delayed, she decided to continue with her life. In 2001, her mother was visiting the United States and stayed. The  remittance she sent her every month allowed her to build her house. Leaving the country became a lower priority.

However, her mother, after becoming a U.S. citizen, insists that she come. She is undecided, she refuses to give up the time, sweat and money invested in building her home. The sacrifice of her mother, who at 65 is working in a foreign country, is only to help her.

But something makes her think constantly of emigrating. The future of her two children. Mainly the boy, a 21-year-old who has left school and is involved in business on the street. She fears he will end up in jail.

Stories like Marta’s occur often in Cuba. It can be told in a thousand ways, with different motives and reasons. Each one is sufficient to justify emigration. However, everyone has to choose. Above all, they must ask themselves: For what would you risk losing everything?

The Cuban emigrant may be unique in that he loses all rights as a citizen in his homeland. He must ask permission to leave without the right of return. Then apply for a license to visit his birthplace. To make matters worse, the government implements legal provisions that prevent him from keeping his own possessions.

Law 989 of December 5, 1961, in force in the legal system, establishes the measures to take about the furniture or fixed assets, or any other item of value, etc. of those who leave with unforgivable contempt for the country. The normal procedure is that the property of emigrants is nationalized through confiscation, without compensation.

The confiscation is a penalty incurred and incidental to a penalty for committing a criminal act. The emigre must give up his property, without the right to compensation. Should the question be: Is it a crime to leave Cuba?

Laritza Diversent

Translated by: CIMF

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