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To be "a tiempo" (on time) and the fulfillment of legal terms

April 26, 2012 1 comment

By: Yaremis Flores

Mabel, the wife of Raúl Rodríquez Soto, incarcerated at Guanajay Prison, this past October, submitted a petition for parole to the Provincial Court of Artemisa. To date, no response has been received.

In Anglosaxon culture, punctuality is an inevitable custom. On time is an expression in English whose meaning is “at the exact time”. If a reporter arrives late to an particular place, he loses the exclusive. If someone in search of a job arrives late to a job interview, it’s certain that they won’t be hired. If the goal is to maintain a friendship, a good job, or gain opportunities in life, one must understand this maxim.

In our country, to be “a tiempo” is complicated. However, Cubans must learn the honorable  necessity of being punctual.

What’s worrisome is that the “relaxing” of schedules doesn’t occur only in the social sphere, Concerts, solemn ceremonies, meetings and other organized activities of state institutions never begin at an establish hour but rather “around ten in the morning” or “at about five this afternoon” as is habitually stated. The only exact times are closing times.

Within the offices of Judicial Administration, the same thing happens. The judges almost never hold court starting at 9:30 in the morning; the legally established hour. Neither is there given an official explanation to those present when there is a delay as prescribed by the rules of procedure. The announcement of sentences is late and the procedural terms are often incomplete.

These delays are symptoms of a weak etiquette or lack of respect for the citizen. Yet judges are not flexible when such terms are violated by others. Because if an individual not in compliance with a resolution appeals before a court a day after the expiration of the time limit, whether it be for any reason whatsoever, the appeal is rejected.

When a lawyer from the Legal Office is late with a file because more time is required to complete an analysis, the court imposes a fine of 25 pesos for each day of delay. I wonder what fine the Court will pay for the days that it delays in responding to Mabel’s petition?

Translated by William Fitzhugh

April 26 2012

Rafters Defenseless Before the Whims of the Captain of the Port

April 22, 2012 Leave a comment

Julio Cesar Rifa and Roger Pupo Fariñas are completely without legal defense and they have no way to remedy this situation. There is no lawyer to be found who wants to oppose the Captain of the Port of Havana for harm wrought against their legitimate rights

On the 17th of December of last year, the authorities surprised them, together with four others, in waters near the coast on a raft that they had built themselves, in a failed attempt at leaving the country. “There had been bad weather and we decided to return to port,” Pupo Fariñas confirmed.

On the third of March of this year, two and half months later, lieutenant colonel Jorge Luis Aluija Urgell issued a decision that affirmed that the six rafters had committed a serious infraction. “They constructed a crude method of departure in which they later navigated Cuban waters without the permission of the office of the Captain of the Port,” as was detailed in the decision.

In 1994, by political decree, under the auspices of protection granted by international treaties (migratory agreements), the Cuban state decided not to criminalize Cubans who leave the country illegally by way of sea in precarious, usually homemade, vessels that put their lives at risk.

Nevertheless, the government, by way of the office of the Captain of the Port, prosecutes administratively when these departures are found on the coast or at sea, for violation of standards for possession and operation of departing vessels in national waters.

In Cuba, there is a system in effect that holds back on fines and other measures such as seizure and confiscation, for violations of administrative positions that don’t constitute a crime, so-called personal infractions. Up until now, the government has enacted more than 90 laws regarding misdemeanors.

There exist fourteen infractions regarding the possession and operation of vessels ready to go to sea, ranging in seriousness from serious to very serious, punishable by fines that start at 500 pesos and go up to 10,000 pesos and include confiscation.

Yandi Vidal Cruz Alfonso, 22 years old, Renny Leyva Risco, 26, Alexander Lara Céspedes, age 36, Ricardo Mera Brides, age 36 also, and Julio Cesar Rifa Rivero, 33 years old, were all fined three thousand pesos in moneda nacional* while Roger Pupo Fariñas was compelled to pay four thousand pesos.

A repeat violation in the commission of serious infractions, or infractions considered light or serious incurred at the same time, are punishable by a fine of three thousand to ten thousand pesos.

Roger has, aside from this infraction, 12 attempts at leaving the country. In December of 2006, he was detained while returning to the coast and interrogated by officials of State Security but was not fined. Julio has made five attempts and in four of them was not discovered by the authorities.

The Captain of the Port in his decision acknowledged that the rafters have the right to appeal his decision. The young men in this case sought legal assistance from the main office of the Cuban Legal Association, directed by Wilfredo Vallín, Esq. The lawyers of this independent organization drew up the wording of their petition.

“The declaration of December 16 by the Captain of the Port of Havana was issued after the deadline,” they maintained in their allegations. “This became an ineffective legal act for not having complied with the established formalities, in this case, the terms for the application of the declaration,” they argued.

The Captain of the Port refused to accept the petition. The lawyers of the Cuban Legal Association recommended that they not pay the fine. Still, the rules that govern the system of misdemeanors warn that in order to appeal a misdemeanor, one must first comply with and fulfill the terms of the penalty.

Fines are doubled upon lack of payment within thirty days following their imposition. After two months of non-payment, steps are taken for their payment by way of withdrawal from bank accounts, withholding of salary, pension, or any other form of income connected to the person being fined.

The rafters were not satisfied. Their most recent move was to request the services of a lawyer from the Legal Collective who would represent them in a legal case against the Captain of the Port. The Law of Civil Procedure currently spells out a procedure for appeals, within judicial channels, of the administrative decisions of State bodies that infringe upon established legal rights.

Julio Cesar Rifa Rivero and Roger Pupo Fariñas appeared at the main offices of the two legal collectives located in the Vedado and Arroyo Naranjo municipalities of Havana. They attempted to engage the services of four lawyers. All declined to represent them. The rafters assume that, perhaps, and only perhaps, the lawyers fear filing a motion against a branch of the Ministry of the Interior.*

Translator’s notes:

*Cuba has two currencies. The Cuban peso (CUP), also known as “national money” is the currency wages are paid in; one CUP is worth about four cents U.S. The Cuba Convertible Peso (CUP) is pegged one-to-one to the dollar, although transaction fees and a “penalty” for exchanging U.S. dollars, makes it the rough equivalent of eighty to ninety cents U.S. A fine of 3,000 CUP is roughly the equivalent of six to eight months’ wages.

**The Ministry of the Interior (MININT ) is the government agency responsible for law enforcement in all of Cuba. This includes the ordinary duties of crime prevention, criminal investigation and prosecution, immigration control, passport issuance, and extends into oversight of dissidents, issuance or denial of exit permits, and by way of the General Directorate of Intelligence (DGI), intelligence gathering inside and outside the country including the acquisition of technologies from outside the country deemed necessary for government operations. Its operations are said to be modeled after the East German Stasi.

 Translated by William Fitzhugh

April 16 2012

Mothers of the Accused Threatened in the Case of the Jeweler

April 10, 2012 Leave a comment

This last March 23rd, two officials of the Department of Territorial Investigations (DTI) and the military Counterintelligence, respectively, threatened the mothers of the mother of Jesus Daniel Forcada Portillo and Ramon Echevarria Fernandez, who have been sentenced to 35 years in prison for murder, with a worsening of the case of their sons because of signs that appeared in Mantilla, a working class neighborhood of the municipality of Arroyo Naranjo.

“On March 20, there appeared several signs in Mantilla denouncing the injustice committed against our sons” explained Adelaida Portillo Heredia, mother of Jesus Daniel. “The officials wanted to know who put the flyers up and we don’t know anything about that” she added. The climate of tension in the streets increased with the arrival of the Pope to Cuba

Portillo Heredia confirmed also that the officials threatened to obstruct justice in the case of her son. “They told me that it was worsening the case if signs continued to appear, although I had contacted the police and the prosecutor and told them I was not going to be able to correct this, not even with the lawyer of the case,” referring to the possibility of filing an appeal of the sentence handed down by the Havana Court this past third of March

She also revealed that they had threatened Aida Echevarria Fernandez, the mother of Ramón with holding up her exit from the country and the return to Cuba of one of her sons who resides in the U.S.

The officials asserted to  the mother of Jesus Daniel that the signs were all over the city and they showed her one. According to Adelaida, the flyers accused Esther Fernández Almieda, 60 years old and the widow of the jeweler, Humberto Gonzales Otaño as the person responsible for his death and of having paid the police, district attorneys and judges to avoid being incriminated. Also on the flyer, they asked why the families of the Five Heroes* appealed for justice all over the world while they could not and because no-one was listening to them, they would appeal for help from the Pope”

Portillo Heredia also affirmed that they had sent more than a dozen written complaints to different authorities motivated by the departure from the country of Mrs. Fernández Almeida during the investigations and asserted that she is recently overseas. The wife of the jeweler gave her declaration as the only eyewitness of the murder and surviving victim in the trial but the court did not ask her about her travel outside the country in spite of continuing complaints of the family members of the accused.

Translator’s note:

* A reference to the five Cubans convicted in a Miami court of being unregistered foreign agents and given long sentences in the U.S. The Cuban government has maintained a high level of publicity regarding “the 5″.

 Translated by: William Fitzhugh

April 3 2012

Condemned for Rape Without a DNA Test

March 28, 2012 Leave a comment

Yaremis Flores

On the tenth of January 2006, the Provincial Court of Las Tunas condemned Ramos Utra to 20 years in jail for the rape of a six-year old girl. The accused, 46 years old, declared himself innocent. Nevertheless the judge sentenced him convinced that “the facts occurred in this way and no other, according to the testimony of the minor”.

The victim recognized as hers underwear found in the home of the accused, with which she was supposedly tied and gagged. But the investigation found no physical evidence corroborating that it was this underwear and no other, that used in the crime.

According to judicial authorities, the convicted took advantage of his having found himself alone with the child and “giving free rein to prurient impulses, penetrated her, performing movements pertinent to the act”. The following day, the child told her mother what had happened and “she alerted the authorities”.

It turned out to be credible to the judges that although and when the accused had “aberrant desires”, it was the child alone who presented with raised fissures in her genitals, unnoticed by the mother who did not suspect what had happened.

Although three witnesses testified that the accused was not alone with the minor at any time, they were dismissed by the Court “not for being favorable to the accused but for showing a marked interest in helping him” the judges confirmed at the time of sentencing, when they also threw out a laboratory test that affirmed that there was no match between the semen found and the blood of the accused.

The lawyer for the defense proposed a DNA exam of the underwear that the minor was wearing on the day of the crime. The judges denied this and validated what had been declared by a police investigator who assured a match between the semen and the blood type of the supposed guilty, insufficient evidence in any just legal system, to overturn the presumption of innocence of the accused

Cuban judges judge sheltered in a “free” assessment of the test. A flawed assessment allows that “you may arrive at any decision but justify it well” according to the President of the Chamber of the Court of Havana which conveys its “insights” to the less experienced. In this manner, the accused must bet on the good faith of those who judge them.

“A delayed examination of DNA, beyond 24 hours, successfully revoked a wrongful judicial finding in the United States, in the case of one sentenced to life imprisonment for sexual assault” according to a press release published in the official press Granma on the 12th of December, 2005. More than 160 people have been freed thanks to the test, in this country.

Ramos Utra has slept more than two thousand nights in prison and insists on his innocence. The possibilities that a trustworthy laboratory analyzes the genetic information of his blood at this point are zero. This is because the Court ordered the destruction by burning of the underwear containing the semen and the panties found in his home.

Translated by: William Fitzhugh

March 27 2012

Cubacel Cuts Service to Dissidents

March 27, 2012 2 comments

Friends, since yesterday at noon, Cubacel has cut my service, the same measure applied to several dissidents, bloggers, and opponents of the regime. They want to silence us. They not only fear words, it pains them to hear the truth.

Translator: W F

March 27 2012

Don’t Defend Anyone

March 16, 2012 1 comment

Twin brothers, sixteen years old, Yordi Emmanuel and Yoan Damian Pardo Contrera will be tried in court, charged with “Public Disorder”. Both were arrested by police officers of the Fourth Unit of Cerro when they suppressed a “regrettable and fanatic reaction of the public”, spectators attending a baseball game between the “Industriales” and “Pinar Del Rio”, this past 1st of February at the Latino Americano Sports Stadium in Havana.

The first came out in defense of his friend Robin, the second in defense of his brother. Their mother, Josefa Caridad Contrera Mequeira appealed for “clemency and justice for these creatures that are beginning to live now”. Both are good students and have no prior convictions. Never has their behavior in their neighborhood called the attention of the police.

Caridad doesn’t understand why the police arrested some without performing an investigation of others and allowing still others to go free. Currently there are four people still detained from the sixty-two that were arrested that night. She asks if all are equal before the law.

Traditionally , the police resolve these cases without going to court by virtue of the authorities that recognize the penal code, by imposing on the convicted an administrative fine and by the provisions contained in Decree 141 of the 24th of March, 1988 on Contraventions of Internal Order.

Contrera Mequeira also feels cheated. The Instructor* — a role that encompasses both interrogator and prosecutor — for the case, Captain Yuniel Batista, assured her that her sons would soon be out on the street and that it would not be necessary to hire a lawyer. Nevertheless from that moment, she found out that they would be brought before the court.

It is common that penal instructors tell the families of the accused that they will not have any problems when in reality the accused are to be arraigned. Maybe this is ignorance or a way to garner sympathy and not end up as the bad guys in the movie. In the end, it is they who are the face of the process. Perhaps it’s just simple wickedness

The truth is that after 24 hours of detention, the accused is assigned an instructor and has a great likelihood  of being brought directly to court. By 72 hours, the case passes to the state prosecutor** and after seven days, it is certain that the case will be tried.

It is also certain that “public disorder” is a minor accusation. The accusation is processed under a special fast track that allows the absence of a defense lawyer. Yet in the case of the brothers, the authorities have decided to apply the additional description of “aggravated” to the charges.

According to this rule, anyone who, without justification and in public places such as entertainment events or meetings in large numbers, in any way disrupts order can be punished with between 1 to 3 years deprivation of liberty or a fine of 300 to 50,000 pesos

Still  the reasoning by which the authorities decided to process the brothers judicially  remains unclear. Robín, the friend who at first ended up detained by the officers of the Fourth Unit of Cerro and for whom one of the brothers came out in defense of, was acquitted or at least, recieved no indication that he would be tried.

Caridad asks for the justice of this country and thinks that the real intention of the police is to use prison to complicate her sons’ situation. The police authorities denied bail and on the 1st of March, the brothers will enter a prison for minors or “young small people” in the municipality of Cotorro

“They want to tie us up and tie us up well” wrote Yordi to his mother. “Mom I don’t want to write because I know that in the end, you’re going to read this piece of paper but I have to in order to express what I feel on being a prisoner” the adolescent emphasized.

His mother is worried. Yoan Damián has damage in his central nervous system and from two years of age, has received medical and psychiatric assistance for disruptive behavior, with permanent medication. “They’re not giving him the prescriptions that control aggressiveness, bad character, and depression. The incarceration has left him out of control,” she declared.

Yordi Emmanuel is not fed well and says he’d rather die than remain imprisoned. “I feel like crying and I can’t, yesterday I couldn’t sleep thinking of you all and today I get up feeling sadder because I’ve been here a month and two days imprisoned, I wish so much that visitor’s day comes so that I can see my mom”.

Contrera Mequeira, a single mother with hypertension at 47 years of age, doesn’t want to see what remains of her children’s childhood and adolescence lost. “Many say that this youth is lost….No!…they are throwing it away !” she stated with a mixture of anger and sadness. “I don’t know where to go or who to trust to help me with this injustice committed by our Revolution,” she concluded between tears.

The twins, 16 years old, Yaon Damian and Yordi Emmanuel never imagined that the altercation between the pitcher of the baseball team “Industriales” and the runner for Pinar Del Rio, David Castillo at the Latino Americano Sports Stadium in Havana this past February 1st would completely change their lives.

“Here in this cell, I see a piece of the world and I want to see all of it,” wrote Yordi to his mother. “Don’t worry that I’m well and tell my brother,” he says to her at the end of his missive. Perhaps in his innocence, he ignores that they are prisoners, not for being fans, but for solidarity and the police bring them to trial in order to teach them a lesson. Don’t come out in defense of anyone whether it be a friend or a brother.  Mind your own business !

Translator’s note:

*Instructor and fiscalía — The names of these positions are difficult to translate because the roles in the Cuban legal system are different from those in other countries, which are also, of course, different from each other as well. An instructor may combine the roles of interrogator, investigator and prosecutor. The fiscalía is similar to a prosecutor/district attorney/attorney general in the U.S. — or magistrate in other English-speaking countries (depending on the level of government).

Laritza has written other posts that help us to understand how the system works. Here are some examples:

Cuban laws favor state arbitrariness. Example: Many citations to appear are not legally valid because they are signed by the wrong person. But if the citizen appears, their showing up automatically makes the illegal summons legal.

Legal process to officially cite a citizen

Cuban laws destroy the principle of innocence

Translated by: William Fitzhugh

March 15 2012

The High Court predicts an increase in competition from the Municipal Courts

March 3, 2012 Leave a comment

Yaremis Flores

The Supreme Popular Court foresees an increase in competition from the Municipal Courts during this current year 2012. This reform was predicted in the setting of meetings between professional judges and involves the integration of crimes with penalties ranging from three to eight years, to the understanding of municipal authorities

According to current legislation, the Municipal Courts are capable and fit to know sanctionable deeds with the deprivation of liberty or incarceration up to three years. With this new change, they would be able to punish someone selling beefsteak or a bearer of a firearm, among others

This transformation, aimed at alleviating the backlog of work in the Provincial Court, nevertheless requires fundamental changes. Some of those provide a high level of improvement and adequate protection of judges.

With respect to this, a professional judge of the municipal court of the Capital affirmed that:”I fear for my security. The penalties are more severe and unlike those who work at the High Court, we don’t even get worker’s transportation. I have even ended up with the accused or their family members, in public transportation after having conducted their trial!”

The neglect of the circumstances of the lives of judges is alarming. It contributes to demotivation and in the worst of cases, to an increase in corruption and impunity. The only incentive received by functionaries of the courts is a bonus of 60 pesos in national currency* to buy clothes and footwear in a shop whose prices are not favorable. And this after a rigorous selection process that prevents enjoyment of the prize to those who apply for certificates of medical leave, leave without salary or workers on maternity leave even and when appropriate dress is demanded of workers in the judicial system.

December 27 passed as a commemoration to Day of the Courts — December 23 — an event was held at the Social Circle, located in the Capital. Nevertheless the budget of the High Court did not even factor in a defraying of expenses for the refreshments of the guests of honor who paid for their own appetizers at the same price offered to the public.

However, Rubén Remigio Ferro, president of the highest judicial authority, said at the close of the year in his disclosure of the rendering of accounts to the National Assembly that: “noteworthy steps have been consolidated in advance in the improvement of the conditions of work and attention given to the necessities of judges and other functionaries of the system.”

*Translator’s note: Cuba has two currencies. One, the CUC  is tied directly to the U.S dollar but the other “moneda nacional” is worth less. The bonus amounts to about $2.50 US.

Translated by: William Fitzhugh

February 29 2012

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