Coming Back

In 2003, Manuel Arias applied for Spanish citizenship. He got a visa from the European motherland thanks to his parents, who were Spanish immigrants who came to the island. When Arias left Cuba, the government labeled him as a permanent emigrant. His properties were nationalized through confiscation with no rightful compensation.

He does not have a valid national ID and he’s not registered to received the monthly food ration. Makes sense, he doesn’t live in Cuba anymore. When he comes to visit, he has to pay for all services as if he were a foreign-born visitor. However, to enter and exit the country, he needs a Cuban passport, as if he still were a Cuban citizen.

Manuel wants to come back to Cuba; he is still legally married in the island. He hasn’t had any luck in Spain, where he is unemployed. He was not doing OK here either, but there, he is alone. He doesn’t care about starting over at age 55. In March 2009, when he came to visit and after he used all the extensions permitted to stay here longer, he try to stay permanently. But Cuban immigration authorities deported him back to Spain.

One can’t help but wonder why it is that the Cuban government denies him the right to come back. Poor Arias, he doesn’t understand that the day he decided to adopt another country’s citizenship, he was sentenced to exile. His properties were confiscated, he needs to pay to enter the country where he was born and also if he wants to stay for a longer period of time.

What Mr.Arias really does not understand is that, by living abroad, he is an asset to the Cuban government. In here, he is a nuisance. He’s getting older and he will return to Spain as he went the first time: with nothing.

By Laritza Diversent

Filed under: :Derechos humanos, Historias de cubanos, Mi Isla, Permiso de entrada y salida, Sobre la ley cubana

Translated by Mailyn Salabarria

Be Careful Whom You Talk To

In Cuba, there are several forms of expression. The most peculiar one if when you want to criticize the political system. There are several steps you need to follow. First, you need to look around the place where you are. Second, with whom are you trying to have a dialogue. And third, you need to converse quietly, using signs and code words.

To many, this might seem an exaggeration. Some even ask if it is simple fear, or if it is really forbidden to criticize the socialist system. The truth is that many Cubans are afraid to speak up, others protect themselves with aliases and those who speak openly, are taking a risk.

The current criminal statues protect State’s leaders, officials and institutions against negative expressions and opinion from the citizenry. In other words, in Cuba, criticism may be a crime.

The Criminal Law includes several criminal provisions that protect people’s honor in general: defamation, libel and slander, and insult. However, the provision of “disrespect” offers exclusive protection to the authorities, in addition to those covered by the previously mentioned crimes.

The criminal provision applies a penalty of a fine or prison from 3 months up to 1 year to whomever “threatens, smears, libels, insults, reviles, or through any other mean defiles or offends, verbally or in writing, the dignity or decorum of an authority, public official, or its agents or assistants, in the course of performing their duties or on occasion or because of their duties.”

Orlando Zapata Tamayo’s initial sentence was for committing this crime. A prisoner of conscience, who died in prison after 86 days on hunger strike. He was sentenced to three years in prison because this crime is considered aggravated when is committed against the president, the members of the Council of State and Minister and the National Assembly. It is a common crime strongly tied to politics.

That means that mocking Fidel Castro or calling the president of the National Assembly a cynic could be interpreted by police as a crime of disrespect.

Don’t they say that in Cuba there is democracy? Then why can’t public figures be criticized by the citizens?

But that’s not all. There are Supreme Court rulings stating that inspectors from the departments of Architecture and Urban Planning, Public Health and the night-shift security officers working for the Ministry of the Interior are also protected by this criminal provision of disrespect. What’s more, members of the Committees for the Defense of the Revolution (CDR’s) are also privileged with the protection of this norm, since they are considered authority’s assistants.

Whoever thinks that if they criticize the government without making a reference to a specific official they can avoid the potential judicial sentence is wrong. The criminal legislation also includes sentences for those who publicly defame, denigrate or despise the institutions of the Republic, the political, masses or social organizations in the country, or the heroes and martyrs of the homeland.

I know it sounds like a joke, but it is not. It is legally prohibited to criticize the historical leaders, the government, the parliament the CDR’s, the Cuban Workers Union and every single organization created by the communists.

Coded-talk will continue to be a form of conversation in Cuba, as long as we have crime definitions that attack freedom of expression. We will continue to have those whispers stuck in our throats, choking us and preventing the people from raising its voice against those who repress them.

By Laritza Diversent

Translated by Mailyn Salabarria

García’s Case: The Appeal

Photos: Dania Virgen Garcia

An appeal has been filed against the sentence that could send Dania Virgen Garcia to prison for 20 months, before Havana’s Court of Appeals (Tribunal Provincial Popular). The legal process was filed by independent journalist Luis Cino.

Within three business days of the sentence, the party deemed guilty can file a written request for an appeal. This document must be submitted in the same court that issued the sentence, in this case, San Miguel del Padron’s municipal court. Then, the court has 48 hours to submit the case and the request for the appeal to Havana’s Court of Appeals.

Attorney at Law Wilfredo Vallin, president of the Cuban Judicial Association, wrote the petition for an appeal in Garcia’s case. It was submitted by independent journalist Luis Cino, but the court refused to accept it, despite having been written in the required legal terms. The court mandated the document to be submitted, in person, by the accused or her legal representative.

According to Cuba’s Criminal Procedure Law (LPP is its acronym in Spanish), a court can not refuse to accept a petition for an appeal unless the petition is submitted past the legal due date. The law also clearly specifies that any other reason for inadmissibility will be considered only by the superior court, once it has received the petition from the lower court. Despite the arbitrariness, Cino was able to hire a lawyer.

Within the first 15 days of May, Havana’s Court of Appeals will provide its ruling. This time, there will be no other legal instrument to challenge the court decision. Garcia could be set free, her sentence could be modified or left unchanged.

One way or the other, there is no other thing to do now except wait.

Filed under Dania Virgen Garcia

Translated by: Mailyn Salabarria

García’s Case: The Crime

Dania Virgen García was arrested on 20th of April. The municipal court judge in San Miguel sentenced her to 20 months in jail, for having “exercised her rights” violently and abusively. This is a crime defined in article 150 of Cuba’s criminal statutes (Codigo Penal) as “Arbitrary Exercise of Rights”.

The provision, in its first part, punishes with up to 3 months in prison or a fine of up to 100 pesos anyone who exercises a right to which they are entitled, or they reasonably believe they are entitled, against the expressed or assumed will of the other person, without having involved the appropriate authorities.

Garcia’s case was exceptional. Her crime wasn’t one of those that are frequent in the island. Experienced lawyers have never witnessed a trial where they sought to apply this provision. More so, when the general norm is that police authorities refuse to get involved in family disputes, whether they are violent or not. There is always a first time; and this time was Dania’s case.

The second part of the crime’s legal provision establishes a stiffer punishment. The sentence can be up to one year of prison or a fine of up to 300 pesos if the incident involves violence against people, intimidation or property damages/trespassing. The court sentenced Garcia to one year and eight months in jail. This means they aggravated her sentence extraordinarily.

The judicial decree has not been made public yet. However, by the text of the criminal statue, one can assumed the court considered one or more aggravating personal circumstances that increases her criminal responsibility. This is the only reason that could explain why her sentences is above the established legal limits.

According to Cuba’s criminal statutes (Codigo Penal), the court can increase up to 50% the maximum limit of an established sentence for a given crime when there are several aggravating circumstances or there is only one that it is unusually significant. Analyzing the aggravating circumstances foreseen in article 53 of the aforementioned code, we can assume the court, in her case, applied the rule in clause g): “committing the crime while abusing abuse of power, authority or trust”.

The basic description of the crime (clause 1) establishes a sentence with a minimum limit of one month in jail, and a maximum of three months. The aggravated crime (clause 2) establishes a sentence between three months and one year of jail. If the court decides to rule the extraordinary aggravated modality of the sentence (article 54), for the basic crime, the sentence would be 1-6 months of jail, while the aggravated crime could carry between 3 months – two years in jail.

Conclusion: the application of the criminal statute in Garcia’s case was using the most exceptional and rigorous standard permitted by law and the imposed sentence was aggravated twice.

Filed under Dania Virgen Garcia

Translated by: Mailyn Salabarria

Garcia’s Case: The Legal Process

The speedy trial of independent journalist Dania Virgen Garcia is also included in Cuba’s Criminal Procedure Law (LPP is its acronym in Spanish). Crimes that carry a sentence of up to one year in prison and/or up to 300 Cuban pesos in fines – like this case we’re addressing – are held at the municipal courts. There the legal procedure starts right after the accusation or complaint has been received.

Garcia’s arrest was conducted by local police in the San Miguel del Padron municipality. When someone is arrested, according to the LPP, police have 72 hours to present their criminal investigation on the case to the equivalent of the district attorney (DA) from that municipality. Police also have to notify the DA, within 24 hours, that an arrest has been made.

The DA’s office of the aforementioned municipality then has 24 hours, after receiving the case’s preliminary docket and when there is an arrest involved, to decide whether they see reason to continue the legal process with a referral to the appropriate court. In this case, the court can set the trial date within five business days after the DA’s referral of the case.

The law says that, only when there are injuries that require medical attention or any other insurmountable reason, the court can set the trial date beyond the five business days time frame. From Garcia’s arrest to the trial four days passed, when the legal term is nine. Apparently, the legal investigation or case against her was initiated before her arrest.

Garcia was arrested in her home in the afternoon of April 20th. Independent journalist Luis Cino said that, according to Garcia’s own words, the accusations against her were made approximately 10 days prior to her arrest.

This type of trial is known by its speed. The hearing was held on the 23rd and right there, the judge declared her guilty and the sentenced was issued. The pronouncement of the sentence implies its notification and, therefore, the starting point of the time frame to appeal it.

In these cases, the LPP does not allow a public defender appointed by the courts. A defense lawyer is accepted, if the accused individual come to the hearing with her/him. A representative from the DA’s office can also be present, if they chose to do so, to exercise its functions in the hearing/trial.

Dania didn’t hire a defense lawyer to represent her due to her lack of knowledge of legal topics and because she never imagined the justice system was going to be so fast. Besides, the family was never involved as witnesses for the prosecution.

Filed as Dania Virgen Garcia

Translated by: Mailyn Salabarria