Steven J. Green School of International & Public Affairs - Legal Avenues for a Transition to Democra

VÁCLAV HAVEL PROGRAM FOR HUMAN RIGHTS & DIPLOMACY

LEGAL AVENUES FOR A TRANSITION TO DEMOCRACY IN CUBA: The CubaDemanda Project

Santiago A. Alpizar and Arnaldo M. Fernandez

AUGUST 2021

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

LETTER FROM THE DIRECTOR As the Director of the Václav Havel Program for Human Rights and Diplomacy, I am pleased to present the timely analysis contained in this document Legal Avenues for a Transition to Democracy in Cuba: The CubaDemanda Project, by Santiago Alpizar and Arnaldo Fernandez. The text offered here to the readers is another part of our Cuba Initiative―a joint project of the Václav Havel Program and Inspire America Foundation, a Miami-based charitable and educational NGO, operating in the “hot” environment of the Cuban American community in Florida that set for itself a challenging goal in its mission statement: “inspiring freedom and democracy in Cuba and the Americas.”

First, I will offer a quick explanation of the basic aim of this project. The Cuba Initiative is a project dedicated to the research, exploration, and dissemination of alternatives for Cuba’s future. It aims to engage the United States, the international community, and Cubans seeking democratization in an ongoing dialogue about all the issues of common concern. It speaks directly to the Václav Havel Program for Human Rights and Diplomacy’s goal of creating opportunities for conversation and exchange about democratic transitions, utilizing in the first place the transformations of Central European countries―Vaclav Havel’s home turf―after the fall of communism as its experiential basis, both good and bad, for seeking and promoting viable paths to Cuba’s return to the community of democracies.

It is also important to note that, in the moment when the Cuba Initiative of the Václav Havel Program at Florida International University was launched―in the presence of the Minister of Foreign Affairs of the Czech Republic in September of 2019—it was not starting from “zero.” Instead, it has had its solid and historically tested foundations in the Central European experience of resisting communism in the 1970 and the 1980s. It could depart from the lessons in transition from totalitarianism to democracy enabled by the Velvet Revolution of 1989, from Václav Havel’s “legacy,” from its rich history of engagement in Cuban matters, and also from past Czech diplomatic experience in this area (going back to the moment when I was dealing with the “Cuban question” in my capacity as head of the Czech delegation at the annual meetings in Geneva of the UN Commission for Human Rights between 1999 and 2001).

When planning its activities in the context of this brand-new cooperation, the Václav Havel Program for Human Rights and Diplomacy was adding an important element to what was already stored under its “roof”―cooperating for years with a number of entities and initiatives, domestic and international, engaged in one way or another in the “Cuban question.”

It is clear that the answer to this fundamental question must first depart from the uniqueness of the Cuban case, from the specificity of the Cuban historical experience. What belongs to our starting point is also the clear awareness that we, who are not Cubans, should refrain from intervening into the domestic Cuban matters and adopt a position of engaged observers instead.

What must be taken into consideration at the same time, however, is the larger context in which Cuba is finding itself in the beginning of the third decade of the 21st century. What can and should be used as a source of inspiration are the transitions from autocratic forms of government to democracy that took place in the other parts of the world in the past: in Spain and Portugal in the 1970s, in Central Europe in the miraculous year of 1989, and of course, in Chile at the end of the same year, after Augusto Pinochet was replaced in the presidential palace in Santiago de Chile by Christian Democrat Patricio Aylwin as the result of democratic elections.

There are four areas that we have been identified as key components of our cooperation with Inspire America Foundation: law, economics, diplomacy and “the presence of the past,” i.e., the “Cuban question” in its larger historical context.

So here is one of the timely and important results of our legal discussion that started in the spring of 2020 in the virtual seminar Models for Implementing Cuba’s Future Transition to Democracy: Reforming the Cuban Legal System. There are three main issues we were dealing with in this debate: First, the question of value-anchoring of the future Cuban Constitution and how to get there from the status quo; second, the question of human rights obligations and the Cuban international responsibility erga omnes; and third, the question of separation of powers and how to make the Cuban judiciary independent from two other branches of government.

So, enjoy the reading.

Yours respectfully, Martin Palouš Director, Václav Havel Program for Human Rights and Diplomacy, Steven J. Green School of International & Public Affairs Florida International University Miami, Florida

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

The Current Historical Juncture Shortly after the outbreak of the American Civil War (1861– 65), President Abraham Lincoln stood before Congress and stated, “Ballots are the rightful and peaceful successors of bullets.”1 Nearly a century later, on the brink of a Cuban civil war (1956–58), former president Ramón Grau San Martín repeated these alternatives in challenging the rule of dictator Fulgencio Batista.2 After mounting several unsuccessful legal challenges to Batista’s usurpation of power and then years of fighting to overthrow him, Fidel Castro chose bullets, establishing the one-party dictatorship that still survives today.

Since 1959, every attempt to topple the Castroite regime by force has failed. The only rational way to continue challenging the regime is through a peaceful opposition capable of attracting votes in the municipal elections and promoting votes against the official candidates in the general elections. Protests and denunciations might be welcomed by the victims of political repression, but they do not pave the way to political power.

For more than six decades, the patriotic and peaceful opposition has been doing little more than tread water.

Instead of focusing on how to win the popular vote against the government, it has tried to obtain large numbers of signatures in support of legislative projects and referendums, which are doomed to fail because there is not one parliamentary deputy in favor of them.

The legal theorist Hans Kelsen developed the doctrine of revolutionary legality, which holds that a successful revolution can amount to a law-creating act and can change the basic norm of a legal order; a revolution can then confer legitimacy on a new constitution that creates an entire legal system.3 But given that there are no guarantees that a revolution would be able to overthrow the Cuban totalitarian state, CubaDemanda takes a different approach. Building on the idea put forward by the Charter 77 movement in Czechoslovakia, which was to hold its government accountable to its own laws and to international law, CubaDemanda’s goal is to change the country’s legal order, including the constitution itself, so that it more fully realizes its original aspirations.

Such a goal reflects much better the nature of peaceful opposition by effecting a transition from the (outdated) law to the (appropriate) law through the (applicable) law.4 It will have a two-pronged approach to reforming the Cuban legal system: (1) discovering legal avenues to remedy the illegitimacy of the dictatorial abuses of power and (2) using the very electoral rules of the one-party regime against this dictatorial regime itself. CubaDemanda is fully committed to providing the relevant legal tools and timely advice to implement this two-pronged approach.

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Legal Avenues against the Dictatorship The Re-Constitution (2019) of the Castroite regime was amended to conform to the letter—although not to the spirit—of international covenants on human rights. A renowned Cuban expert jurist, Dr. Juan Rafael Mendoza, has discerned a “constitutional trident” in the Re-Constitution between effective judicial protection (Article 92) and due process forked in a general model for all procedural types (Article 94) and the specific model for criminal matters (Article 95).5 Ordinary citizens can make use of this to actively engage in the struggle for their fundamental rights.

I. Effective Judicial Protection Article 92 reads, “The State guarantees, in accordance with the law, that people may access judicial bodies to obtain effective protection of their rights and legitimate interests.

Fulfillment of judicial decisions is obligatory, and disrespect of these decisions will result in liability for those who violate them.” In consideration of this constitutional safeguard, Cubans should judicialize all matters that are the subject of their peaceful demands, denunciations, and disputes with the regime. CubaDemanda strongly recommends that Cubans file all and any claims in the tribunals.

a. Criminal charges against repressors Apart from offenses against life and body integrity— which must be reported to the police or the prosecutor’s office—victims of repression should report to tribunals any violation of individual rights defined as a crime by the Penal Code in its Title X: Violation of personal freedom (Articles 279–283) / Threats (Articles 284–285) / Coercion (Article 286) / Violation of home (Article 287) / Illegal search (Article 288) / Violation of the secrecy of correspondence (Article 289) / Disclosure of the secrecy of correspondence (Article 290) / Offense against the free expression of thought (Article 291) / Crimes against rights of assembly, manifestation, association, complaint, and petition (Article 292) / Offense against the right to property (Article 293) / Offense against religious freedom (Article 294) / Offense against the right to equality (Article 295) / and Offense of improper imposition of disciplinary measures (Article 297).

b. Civil and administrative legal actions Although Cuban’s law requires attorney representation in almost all administrative and civil matters, one can initiate a legal complaint without counsel. The National Organization of Collective Law Firms (ONBC by its Spanish initials) must provide adequate representation before the court. According to the organic law, Decree-Law 81/1984, all lawyers “are independent and only owe obedience to the law” (Article 2.a) by exercising their role of

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

“representing or directing, with the utmost diligence, those who require their assistance” (Article 18.c).

produce a title of ownership or a certified lawful order of seizure or confiscation issued by a tribunal.

Access to the tribunal for any administrative matters, is limited according to the rules of the Council of Government of the Cuban Supreme Court, which has established the prelitigation requisite of exhausting all possible remedies first before the state administration bodies.6 However, despite this oddity, the Re-Constitution guarantees due process in all matters.

The projected new Code of Procedures will retain this “amparo” (injunctive relief) as an action to recover possessions; it must be filed before the municipal tribunal (Article 24.d) and shall be substantiated within the scope of a simpler civil process known as Summary Process (Article 521.h).

II. Due Process in General For the first time in Cuban law, the Re-Constitution expressly indicates that the people shall enjoy due process as a guarantee of legal security in both the judicial and administrative spheres (Article 94). The relevant rights are as follows: •

Having equal opportunities in all processes as a party

•

Receiving legal assistance (right to counsel)

•

Providing evidence and requesting the exclusion of those illegally obtained

•

Accessing a competent, independent, and impartial court

•

Being deprived of rights only by the decision of a competent administrative authority or the final judgment by a court

b. Economic rights and consumer protection actions Concerning other administrative and civil matters, CubaDemanda advises the judicialization of all crucial issues in Cuba concerning the dysfunctional economy.

Given that the Re-Constitution establishes a totalitarian —one-party—state that runs, regulates, and controls all economic activity based on socialist planning principles (Article 19), a peaceful opposition must focus on filing legal complaints that address all economic issues that violate the following constitutional rights: •

Use, enjoyment, and free disposal of personal property (Article 58): both the expropriation and the confiscation of property through administrative procedure (Article 59) could be argued before a tribunal

•

Adequate housing and a safe and healthy habitat (Article 71)

•

Quality medical attention, protection, and recovery services (Article 72)

•

Quality education services (Article 73)

•

Bringing an action or procedure against judicial or administrative rulings

•

Enjoying due process without an undue delay (right to speedy trial)

•

A healthy and balanced natural environment (Article 75)

•

Getting redress and compensation for material and moral damages

•

Access to potable water (Article 76)

•

Healthful and adequate nutrition (Article 77)

a. “Amparo”: an effective method of injunctive relief

•

Quality consumer goods and services (Article 78)

Under Article 94.e, CubaDemanda advocates the legal shortcut known as “amparo” (injunctive relief) to protect the individual’s rights of possession against extrajudicial dispossession by state agents.

Consumer protection ensures access to goods and services that would not endanger human health, giving the consumer access to accurate and sufficient information about goods and services, and ensuring dignified and fair treatment.

First, it is essential to obtain and preserve documents certifying the relevant assets that could be seized by the repressive forces. Then, the possessors deprived of their belongings shall file an “amparo” (injunctive relief) lawsuit in the 5h3 municipal tribunal. According to the Law of Civil, Administrative, Labor and Economic Procedure, the law shall give immediate protection to a complainant who has proof of ownership of goods provided by the proper documentation (Article 404).

More specifically, the Cuban Civil Code contains an juris tantum presumption that a possessor of a good is its owner (Article 201); therefore, repressors seizing the property cannot escape adverse judgment unless they

Although this list is not exhaustive, it covers specific judicial areas of civil and administrative litigation against the dysfunctional regime. Any person whose constitutional rights are violated—so that they suffer damages caused by the state’s organs, leaders, officials, or employees for their commonly known capricious and arbitrary acts—has the right to claim before a court the restitution of their rights and the corresponding redress or indemnity through preferential, expedited, and predeterminate proceedings (Article 99).

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

1. Declaration of an “Unlawful Act” and the road to redress and remedies

human life, injuries, and damages.

The Re-Constitution also provides that any person who suffers damages unduly caused by leaders, officials, or employees of the state exercising their duties has the right to claim and receive the corresponding redress or indemnity (Article 98). However, the legal avenue is a long and winding road. The Civil Code defines any damaging action by entities or individuals as an unlawful act (Article 81); however it also provides that the unlawful act’s declaration must be issued by the pertinent highest state authority (Article 96). Thus, the claimant must first address the issue in the administrative sphere.

CubaDemanda would like to draw attention to the fact that any claim before the Cuban “authorities” must be completed through a process that we call a “legal trifecta” —complaint and petition, administrative appeal, and judicial lawsuit.

This includes cases involving wrongful death or injury by an unlawful act of the state “authorities” or their agents.

This would have been effectively tested in the notorious occurrences of collapsing buildings in Havana City, but the affected citizens abstained from making the claims before court, even after having publicly protested with placards in the streets.

The Re-Constitution grants the right of any person to file complaints and petitions before the “authorities” (all government entities). The “authorities” are obligated to process and to respond to them in a timely, pertinent, and legally founded manner (Article 61); therefore, this is the starting point for redress and remedies against the damaging actions (unlawful act) committed within the regime’s “authorities” by its leaders, officers, or their simple employees. Following the declaration of an unlawful act or the administrative silent, id est:—the refusal by the authorities to take a decision—the next step shall be the Administrative Appeal (Recurso de Alzada) and the corresponding lawsuit before the competent tribunal.

The Civil Code prescribes certain rules for appraisal of socalled human damages (Article 86.a–e); however, Cuban judicial doctrine has made crystal clear “that both the damage to the life and the physical integrity of the individual must be quantified pecuniarily, and that the effective redress … is freely appraised by the judge.”7 Therefore, the plaintiff suing for damages is free to demand any amount deemed adequate in light of the following standard set by the foregoing judgment: “the degree of liability of the defendant and the economic situation of both the defendant and the plaintiff.”

2. Determination of tribunal competence and procedural action The claim for damages is a civil matter attributed to the municipal tribunal when the amount in dispute is not more than ten thousand pesos (Article 5.1). When the amount in dispute surpasses this threshold, the jurisdictional venue is the provincial tribunal (Article 6.1, Law of Civil, Administrative, Labor and Economic Procedure [LPCALE, by its Spanish acronym]).

Currently being proposed to the Cuban National Assembly, a new Code of Procedures, will repeal the LPCALE. The latter establishes the fixed limits of ten thousand pesos for the competence of the municipal tribunals and the scope of the Summary Process (Articles 5.1 and 358.1). The new Code of Procedures will confer to them the competence in tort liability (Article 24.1.f) claims in cases of a “limited” amount of monetary damages (Article 521.a) to be substantiated within the scope of the Summary Process; tortious actions involving demands for “significant, invaluable or undetermined” amounts of monetary damages (Article 490.1.a) will be substantiated before the provincial tribunals within the Ordinary Process.

The Council of Government of the Cuban Supreme Court will determine the concepts of “limited,” “significant,” and “invaluable” or “undetermined” amounts. This new Code of Procedures will come into force 180 calendar days after its publication in the Official Gazette; CubaDemanda does not expect its promulgation into law before December 2021.

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3. Necessity of triple actions and a method of appraising

4. Damages against the honor and dignity of a person The Civil Code also addresses non-material damages to reputation requiring public retraction by the offender (Article 88). Since these damages commonly occur during “acts of repudiation” or government-supported libelous publications targeting all the individuals engaged in the opposition within Cuba, CubaDemanda suggests approaching this issue from the perspective of the Re-Constitution itself: All people have the right to honor (Article 48). Subsequently, civil tort liability derived from offense against honor must be claimed.

The Cuban Penal Code defines three offenses against honor: defamation (Article 318), slander (Article 319), and libel (Article 320). Because defamation is a crime prosecuted ex officio only, the regime will refrain from prosecution of its own agents; therefore, the legal avenue for civic opponents is to file a private criminal accusation using the procedures known as “Querella” (Querela) to criminalize slanderous and libelous actions of the government’s officers and their agents of oppression against opposition leaders or the population in general. The Penal Code definition of slander is knowingly spreading false facts that detract from the reputation of an individual, whereas libel is defined as the act of purposely offending another individual’s honor, whether in writing or orally, by means of drawings, gestures, or acts.

Both the old Law of Penal Proceedings (LPP) and the new Law of the Penal Process (LPP) authorize the victims of slander or libel to file the complaint (Querella) before the tribunal under guidance of an attorney (Article 420-434 and Article 700-714, respectively). The difference is that

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

the former confers jurisdiction to the provincial tribunal (Article 9), and the latter confers it to the municipal tribunal (Article 102.1).

5. Bringing legal action against the central, provincial, and local governments and their agents A new Law of Administrative Procedure will come into effect shortly. It redirects tort actions against the government to an administrative court procedure in cases where the action arises out of acts, regulatory provisions, material actions. and omissions of the central, provincial, and local governments and their agencies or entities, as well as of the companies providing public services or exercising public functions or powers (Article 6).

Although this law is unclear, the competence to substantiate claims against patrimonial liability of the public administration (Article 13.1.c) is determined by the amount of damages claimed; if they are “significant, invaluable or undetermined,” the case is heard by the provincial tribunal (Article 13.1.d); cases with “limited” damages go before the municipal tribunal (Article 12.1.b).

The LPCALE, soon to be revised, precludes certain issues (Article 657) from administrative jurisdiction and so from any judicial review: •

National defense, state security, public order, and measures in exceptional circumstances to safeguard general interests

•

Transactions in foreign currencies or securities, and control of monetary exchange

•

Planning for the national economy

•

Constitutional, civil, criminal, labor, and social security matters

•

Educational activity, and school and student discipline

•

Exercise of discretionary power

•

Agreements of the Council of State and the Council of Ministers

In addition to these preclusions from the LPCALE, the new Law of Administrative Procedure will exclude from judicial administrative review the following areas of the law: constitutional, penal, family, and commercial matters (Article 8.a); foreign relations (Article 8.c); and monetary policies, exchange, financial, fiscal, and banking policies (Article 8.d). It also excludes from administrative jurisdiction the agreements of the National Assembly; actions by the President, the Vice-President, the Prime Minister, and the Council of Ministers as the Government of the Republic; actions by the Governors and the Provincial Councils within their respective functions; ordinances and agreements by the municipal assemblies; mandatory general standards and instructions issued by the Council of Government of the Supreme Court; the electoral function; and control of the

criminal investigations and the exercise of public criminal actions by the Prosecutor Office (Article 9).

6. Bringing legal action against the government for misuses of common property and the right of receivership CubaDemanda is suggesting that time not be wasted by taking cases to the court that appear to be precluded from judiciary review or limited judiciary review. Instead, we recommend a bolder approach, which is to “defend” the so-called socialist property of all the people.

The Re-Constitution specifies that “the State acts on behalf [of all the people] as owner” (Article 22.a); accordingly, the rightful owner is the Cuban people. Therefore, this type of “ownership” entitlement implies application of the Cuban Civil Code, which gives equal shares consideration for owners of common property (Article 162.1).

This approach would allow the people of Cuba as co-owner of the social property in Cuba to challenge all acts of the administration in managing it, given that the current Civil Code requires the consent of most of the co-owners in any decision-making process regarding the common property.

In cases of non-consent in how to control and manage common property, the Civil Code authorizes, at the request of the concerned party, the “competent authority” to resolve any disagreement, even with the appointment of an administrator (receiver) (Article 164.1). Interestingly, the rationale for claims against mismanagement by state agents of the all-the-people’s property is set by the Cuban government itself as it has repeatedly advocated for “releasing the productive forces.”8 According to the LPCALE, the Summary Process is designated to resolve controversies among co-owners over the administration of common property (Article 358. 5). Because these disputes are not matters of national economic planning, which cannot be contested, but are civil in nature, the issue is not expressly barred from judicial review in a civil tribunal.

Under the new procedural rules, the municipal tribunal hears disputes over ownership rights (Article 24.1), whereas the new Law of Administrative Procedure refers claims against state companies and other entities to the administrative jurisdiction (Article 7). The initial complaint against mismanagement of the all-the-people’s property must be directed to the civil jurisdiction. If the civil tribunal declines jurisdiction, the legal administrative trifecta—complaint and petition, administrative appeal, and judicial lawsuit—shall come into play instead.

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

III. Due Process in Criminal Matters The Re-Constitution contains a new due process clause in criminal cases (Article 59) that conveys the following guarantees: •

Enjoyment of personal freedom unless deprived by competent authority for the legally prescribed time

•

Legal assistance (right to counsel) from the start of the criminal proceedings

•

Presumption of innocence until declared guilty by a final court sentence

•

Respectful treatment preserving dignity and physical, mental, and moral integrity, as well as preventing any kind of violence and/or compulsion to declare

•

Exemption from the duty to testify against oneself, one’s spouse or civil partner, or relatives within the fourth degree of consanguinity and second grade of affinity

•

Instruction of charges

•

Trial by a legally pre-established court and according to laws pre-dating the crime

•

Immediate communication with relatives after arrest or detention

•

Protection for exercising the victim’s rights when applicable.

a. Unconstitutionality of current Law of Penal Procedures (LPP) The LPP, which is still in force, is unconstitutional because it does not make available legal assistance or attorney representation from the start of the penal process.

Instead, respondents can only be represented after “a resolution is issued to impose any of the authorized precautionary measures” (Article 249), such as pretrial detention, cash bail, moral support by a workplace or social organization, house arrest, and the obligation to periodically appear before the authorities (Article 255).

Meanwhile, under the LPP it is lawful for a detainee to remain without legal assistance for up to seven days (Articles 245–247).

CubaDemanda recommends raising the argument of the unconstitutionality of the current LPP in every allegation made before the police, prosecution, or judges, thereby exerting pressure to put a revised LPP in place. A new LPP will come into effect 180 calendar days after the publication in the Official Gazette of its approval by the National Assembly.

CubaDemanda also warns about the legal system’s propensity to report detainees as “disappeared” or “unaccounted for” or even filing untimely petitions for habeas corpus, knowing that any detainee may be held incommunicado for up to seven days, and failing 8

to appoint defense counsel. We suggest reporting any unlawful detention and filing a pertinent denounce before the municipal tribunal pursuant to Article 166 of the LPP. CubaDemanda also suggests that anyone who is unlawfully or capriciously detained should immediately and actively seek legal representation. The lawyer will provide legal counseling and start an evidencegathering process, considering that after the eighth day of detention, the detained person must already be “in an establishment other than the one destined to the extinction of custodial sanctions” (Article 247), popularly known as “La Pendiente.” The designation of defense counsel within a few days of detention would allow the attorney at the eighth day to (1) meet the respondent, (2) examine the proceedings, (3) propose evidence, and (4) request revocation or modification of the pretrial detention (Article 249).

In case the designated or appointed defense attorney counsel does not find the detainee at “La Pendiente” or does not receive an adequate response from the prosecution or police instruction office regarding the fate of the detained person, then a writ of habeas corpus should be submitted to the provincial tribunal. Under the Re-Constitution, even third parties can submit such a writ in favor of anyone illegally deprived of freedom (Article 96).

The new LPP will change the rules in favor of the detained person: he or she must be charged with any crime within twenty-four hours of arrest (Article 129.3) and can request an attorney’s representation at the charging proceedings.

If the individual does not know any lawyer, one will be appointed ex officio at his or her request (Article 12).

Thus, the guarantee of legal assistance will move forward from the eighth day to the twenty-fifth hour.

CubaDemanda advises all detained persons to refrain from engaging in any type of verbal or written exchange with the police or agent of the Department of State Security without having defense counsel present: this right is recognized in both the old (Article 161) and the new LPP (Article 130.e). The scope of defense under the former LPP (Article 249) will be broadened under the new one: counsel can communicate privately with the client, learn the content of the criminal process, take notes, photograph or film the proceedings, propose evidence, request proceedings, and carry out an appropriate investigation using due diligence (Article 133).

CubaDemanda strongly supports the need for defense counsel in all criminal procedures, especially against members of the opposition, and recommends that funds be allocated for this purpose. Civic opposition is a form of effective engagement against a dysfunctional state that allows arbitrary treatment of its subjects, and it is essential to support popular demands for justice, equality, and due process in Cuba. CubaDemanda is also committed to offering advice and guidelines for confronting

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repression without the presence of defense counsel in situations requiring urgency, such as detention, entry and search in a private home, and seizing of properties.

b. Unlawful detentions and arrests A frequent tool of repressive state agents is detention of political opponents. This often violates the formalities prescribed by law, as provided by both the old (Article 241) and the new LPP (Article 341). But no one should be fooled: law enforcement agents can detain whomever they want, while legal formalities are reduced to a written record.

These articles are the only defensive legal resource against arbitrary detention. CubaDemanda advises all political opponents to invoke them out loud upon arrest and demand a copy of the detention or arrest act. If the agents of repression refuse to proceed as mandated by their own laws, the violation of the invoked legal rule should be the first statement of the respondent or defendant to nullify the whole penal process.

According to the old LPP, a record shall be drafted on the arrest of any person, stating the date, time, reason, and any other concerns. It shall be signed by the acting agent and the detainee. At the request of the latter or their relatives, the agent or any other custodial authority will inform them of the arrest and the detainee’s whereabouts and facilitate communication within the time frames and in the manner established by the applicable legal provisions (Article 244).

The new LPP further specifies that the written signed record must include the first names and surnames of both the detainee and the acting agent, and even the latter’s position and military rank, if applicable (Article 346). It also makes explicit reference to the duties of the operating authority: to inform the detainee about the reasons for the arrest and, within twenty-four hours, to facilitate communication with a relative, any other person, or with an entity, as well as to proceed with the instructions of charges, including which offenses, who reported them, and what rights the detainee has (Article 347). c

c. Unlawful search warrant and illegal home invasion Another repressive tactic is entering and searching private homes, as well as seizing anything the agents find. The Re-Constitution is crystal clear about the illegality of this action: “The home is inviolable. It is not possible to enter someone else’s dwelling without permission of the person who inhabits it, except by express order of the competent authority, with the legal formalities and for a reason previously defined by law” (Article 49).

CubaDemanda advises the people subjected to this tactic to never grant permission to a state agent to enter a private residence without a proper search warrant. The old LPP presumes that the individual has granted permission if he or she does not invoke the constitutional guarantee

of the inviolability of the home when the agents arrive (Article 218). Therefore, all political opponents should write down and remember this guarantee so they can recite it or show it in writing to whomever tries to enter their home.

Although there are no guarantees within the tyrannical communist system that one’s constitutional rights will be honored, one should compel the repressor to follow the law, which mandates that, to be lawful, a search warrant must meet the following criteria: (1) the search is to be carried out between 5 a.m. and 10 p.m.; (2) the subject must be given a copy of a founded resolution issued by the police instructor (detective) with the approval of the prosecutor (Article 218); and (3) this resolution must contain its precise objective, its justifying reasons, the enclosed place it covers, and the name of the officials or agents conducting the search (Article 219).

The new LPP prescribes the same rules (Articles 304– 316). The best practice to prevent any violations of these regulations by the repressive agents is to avoid any discussion with them and instead file a complaint before the prosecutor office and a correspondent denounce before the municipal tribunal pursuant to Article 116 of the current LPP. Such a complaint and the correspondent denounce must also be filed against any other violation of the criminal proceedings for search warrants such as (1) a search that exceeds the strict objectives of the investigation or (2) a seizure (of anything) without a record signed by the person in whose possession the things were found.

Because the authorities must respond in writing to that complaint, such documentary evidence would reinforce the credibility of the claimants and help in arguing the case in the media.

IV. The Engaged Citizenry in Collective Actions By its nature, the patriotic and peaceful opposition demands that all preestablished legal channels shall be exhausted in the fight against arbitrariness, injustice, and abuse of power. In addition to the classic legal trifecta—complaint and petition, administrative appeal, and judicial lawsuit— against state wrongdoings, CubaDemanda recommends that the engaged citizenry exercises collective actions under the political right established by the Re-Constitution to participate in the formation, exercise, and control of the power of the state (Article 80). However, since the 1988 initiative by the Cuban Human Rights Party, the opposition has incorrectly construed the constitutional requirement for the required number of voters to sign petitions for law changes, legislative initiatives, or a referendum. Therefore, CubaDemanda prepared this table, showing the numbers of signatures by voters mandated by Law 131/2019 on Organization and Functioning of the National Assembly and the Council of State.

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

Legal matter

Threshold of voters

Law 131/2019

Reforming the Constitution

50,000

Articles 243–249

Proposing an ordinary law

10,000

Articles 116–124

Interpreting the Constitution

1,000

Articles 171–177

Interpreting an ordinary law

500

Articles 171–177

Declaring unconstitutionality

500

Articles 154–168

Canceling the central government’s provisions

500

Articles 154–168

Revoking the Municipal Assembly’s provisions

50

Articles 169–170

Canceling the Municipal Assembly’s provisions

50

Articles 282–289

Revoking the provincial authority’s provisions

50

Articles 293–296

Modifying the provincial authority’s provisions

50

Articles 293–296

The crucial issue was—and still is—not the collection of signatures from willing citizens demanding their rights but how to prove that the signers have the required voter status.

Every previous effort to collect signatures for proposals of law violated the applicable complementary regulation of the Rules of the National Assembly (1996), which requires proof of each voter’s active status with a notarized affidavit (Article 64). Certification of each voter then must be validated by the National Electoral Council (Article 118). This critical certification must be obtained before engaging in any kind of collective action or petition.

Because of the organizational challenges implicit in every collective action, CubaDemanda advocates a goal-oriented concrete approach and is keen to provide specific legal advice. Rather than undertaking projects doomed to fail from the outset, like attempting to amend the Re-Constitution or propose ordinary laws, CubaDemanda suggests focusing on promoting reinterpretations of the Re-Constitution and ordinary laws.

a. Ratification of International Covenants

administrative or executive organisms of the state for the ratification of and compliance with these international human rights treaties. This petition should demand that the regime enforce “human rights” within the letter and spirits of these international covenants. If it fails to do so, the Cuban government must clarify what meaning it gives to the “human rights” within the present Re-Constitution scheme.

Similarly, CubaDemanda also recommends that there be a collective petition addressed to the National Assembly and all other administrative or executive organisms for a declarative interpretation of the term “ rule of law” according to the Re-Constitution, Article 42: “All people are equal before the law, receive the same protection and treatment from the authorities, and enjoy the same rights, liberties, and opportunities, without any discrimination for reasons of …personal condition or circumstance that implies a distinction injurious to human dignity.” This petition would seek interpretive clarity on whether one’s political affiliation is considered a “personal condition or circumstance”: the answer to this point would determine the most effective strategy regarding electoral rights.

on Human Rights The Republic of Cuba has been unwilling to ratify the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR), even though it signed them on February 28, 2008. Nonetheless, the Re-Constitution affirms, “The Cuban State recognizes and guarantees to a person the non-renounceable, indivisible, and interdependent enjoyment and exercise of human rights, in correspondence with the principles of progressivity and nondiscrimination. Their respect and guarantee are obligatory for all” (Article 41).

Law 131/2019 mandates that any interpretation, either of the Re-Constitution or an ordinary law, must be initiated by filing a petition to the National Assembly (Article 172).

Therefore, CubaDemanda proposes that a main goal of the opposition should be to organize a massive Cuban voters’ petition drive before the National Assembly and all other 10

V. The Fight against Electoral Apartheid CubaDemanda promotes the rational interpretation of Electoral Act (Law 127/2019, Ordinary Official Gazette No. 60 of August 19, 2019) that a ballot must be counted as valid providing it unequivocally expresses the political will of the voter. Today, this does not happen. Although the ReConstitution includes provisions for a “free, equal, direct and secret vote” (Article 204), voting in Cuba is neither free nor equal nor secret. In a striking deviation from the law of nations, electoral apartheid pervades the Republic of Cuba.

The Electoral Act, as implemented, clearly violates the ICCPR’s standard about the right of every citizen to vote “without unreasonable restrictions” (Article 25).

The powers that be have developed procedures that make

Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

free voting impossible. Most elections have a numerus clausus candidacy (Article 192) and a ballot that requires one to vote for a party candidate and that does not provide the option to write in the name of an independent contender (Article 202). Thus, the only way to express the political will against the status quo is to leave the ballot blank or to spoil it in some manner. The Electoral Act requires election officials “to declare null and void the ballots in which the voter’s will couldn’t be determined” (Article 120). In practice, officials void all blank ballots, those with write-in names, and even those expressing with texts or graphics a crystal-clear, determined will to vote against all the candidates, as the Castroite academic phalanx itself openly admitted.9 Therefore, all the votes cast by the Cuban citizens opposing the status quo are not valid. Such electoral apartheid must be put in the public pillory since it contradicts not only human rights but also human logic. The Re-Constitution stipulates that the winning candidate must obtain more than half the number of “valid” votes cast (Article 210). By invalidating so many ballots, election officials ensure victory for party candidates.

Yet, there is only one real decision-making body for a democratic transition—the Cuban people—who must be empowered to patriotically and peacefully exercise the right to vote with the long-term goal of forming a parliamentary opposition. Political dissenters must fulfill three primary electoral tasks: 1.

A significant number should run for delegates in the municipal elections. Though the Electoral Act regulates these elections, candidates are nominated by popular vote in neighborhood meetings (Article 89). Cuba Demanda recommends that there be a consensus within the opposition on which leaders are most qualified to be nominated and who should nominate them from the floor.

(Article 93).

2.

There should be a grassroots campaign to raise awareness that the only effective way to express opposition is not to abstain from voting but to cast a void ballot or at least a blank one. As per the Electoral Act, the general elections are plebiscites on the status quo because of the numerus clausus candidacy (Article 192) and the lack of options on the ballot (Article 202).

Cuba Demanda suggests that the key message for the grassroots campaign should be as follows:

3.

Voting is a citizen right. Go to the polls, but keep in mind that voting for any governmental candidate is worth as much as voting for going on as usual: from bad to worse without hope. Go to the polls but spoil your ballot or leave it blank. No one can see you or hold you accountable thereafter and thusly you shall exercise your right to vote in favor of a better Cuba.

4.

Opposition members should help prevent blatant voting fraud by exercising the right granted by the Electoral Act to witness the voting and counting process at polling stations (Article 113.2). In case of fraud, Cuba

Demanda recommends refraining from any interference and instead quietly gathering evidence for the criminal offense described in the Electoral Act as “falsify[ing] ballots and/or poll results” (Fifth Transitional Provision, Subparagraph b). This evidence should be brought to the municipal court.

The fight in both the vertical (elections) and horizontal (human rights) dimensions of democracy could coalesce the scattered opposition groups into a united and coherent political force with one clear voice, which would attract sufficient attention from the Cuban people and the international community to create change.

VI. The Call to the International Community CubaDemanda understands that the fate of the Cuban nation must be decided by the Cubans themselves. However, to increase the efficacy of their demands that the Cuban Communist Party comply with its own constitutional responsibilities, Cubans should make greater use of electronic communications. To that end, CubaDemanda provides relevant email addresses and web sites to formalize complaints, claims, and demands.

The Cuban Communist Party has disastrously mishandled the COVID-19 pandemic and mismanaged the economy, failing to fulfill its constitutional mandate of guaranteeing “access, free of charge and quality of care, protection and recovery services” (Article 72). It has further exacerbated the health and economic crisis by not accepting international humanitarian aid, based on their denial of the crisis and stating that such aid initiatives were part of an international disinformation campaign, CubaDemanda considers that the Cuban Communist Party has disregarded its responsibility to guarantee the right to life and public health to all its people (Article 46) and that its designated president, Miguel DiazCanel Bermudez, has neglected his personal and public responsibility to declare a State of Emergency and/or Disaster Situation (Article 128.k) to facilitate the receipt of essential humanitarian aid.

Therefore, CubaDemanda suggests and urges all Cubans not only to protest before all bodies of the Cuban Communist Party and its structures of power but also to demand help from the international community until they achieve (1) the opening of all seaports and airports of Cuba to the projected people-to-people aid and (2) the formation of a transitional government with the inclusion of opposition and exiled leaders fully committed to national reconstruction and pluralistic democracy in Cuba. CubaDemanda shall provide relevant contact information of all pertinent governmental and nongovernmental entities that can facilitate reaching these goals. We believe that international pressure could and should include imposition of sanctions against human rights abusers and other actions to diplomatically isolate the government of “one-party democracy” in Cuba.

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

NOTES 1 LINCOLN, A.: “Address to Congress, July 4, 1861,” in Lincoln on Democracy and the Civil War, Lincoln Home (National Historic Site, Illinois).

2 GRAU SAN MARTÍN, R.: “Votos o balas,” El Mundo [Havana], April 19, 1956, p. 6.

3 KELSEN, H.: General Theory of Law and State, Harvard University Press, 1945, pp. 368f. Translated by Anders Wedberg (1961).

4 “Fernández-Miranda: de la ley a la ley”, ABC (Madrid), June 13, 2007.

5 MENDOZA DÍAZ, J. and GOITE PIERRE, M.: “El debido proceso penal en el modelo constitucional cubano” [The due process in the Cuban Constitutional Model], Universidad de La Habana [online], Issue 289, April 25, 2020, pp.163–86.

6 Instruction 245, Extraordinary Official Gazette 9, June 21, 2019.

7 Judgment 110 given on November 2, 1999, in case 88/99 on civil damages, by the Second Civil and Administrative Chamber of the People’s Provincial Court of the City of Havana.

8 “Consejo de Ministros: Salvar vidas y estimular el desarrollo económico de Cuba” [Council of Ministers: Saving Lives and Stimulating Cuba’s Economic Development], Granma (Havana), May 8, 2020.

9 PÉREZ HERNÁNDEZ, L. AND PRIETO VALDÉS, M.: El sistema electoral cubano [The Cuban Electoral System], Havana: Felix Varela Press, 2000, pp. 268f.

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Václav Havel Program for Human Rights & Diplomacy Steven J. Green School of International & Public Affairs

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Legal Avenues for a Transition to Democracy in Cuba: The Cuba Demanda Project

About Florida International University Florida International University, a public university located in Miami, has a passion for student success and community solutions. The university is classified by Carnegie as “R1.” FIU is among the top 100 public universities in U.S. News and World Report’s 2019 Best Colleges and 18 academic programs are individually ranked. FIU was recently ranked as the second best performing university in Florida and graduates are among the highest-paid in the state. FIU has multiple stateof-the-art research facilities including the Wall of Wind Research and Testing Facility and FIU’s Medina Aquarius Program.

FIU has awarded more than 330,000 degrees since 1972 and enrolls more than 57,000 students in two campuses and centers including FIU Downtown on Brickell, FIU@I-75, the Miami Beach Urban Studios, and sites in Qingdao and Tianjin, China. FIU also supports artistic and cultural engagement through its three museums: Patricia & Phillip Frost Art Museum, the Wolfsonian-FIU, and the Jewish Museum of Florida-FIU. FIU is a member of Conference USA with more than 400 student-athletes participating in 18 sports. For more information about FIU, visit www.fiu.edu

About the Steven J. Green School of International and Public Affairs Launched in 2008, the Steven J. Green School of International and Public Affairs at FIU educates the leaders and changemakers of tomorrow through innovative teaching and research that advances global understanding, contributes to policy solutions and promotes international dialogue. One of the largest schools of its kind in the world, the Green School enrolls more than 5,700 students and employs 360 fulltime faculty. It offers 38 interdisciplinary degree programs at the bachelor’s, master’s and doctoral levels, as well as 54 undergraduate and graduate certificate programs. The Green School encompasses eight signature departments: Criminology and Criminal Justice, Economics, Global and Sociocultural Studies, History, Modern Languages, Politics and International Relations, Public Policy and Administration and Religious Studies.

Home to 16 of the university’s most prominent international centers, institutes and programs, the Green School is an affiliate member of the Association of Professional Schools of International Affairs (APSIA).

About the Václav Havel Program for Human Rights and Diplomacy The mission of the Václav Havel Program for Human Rights and Diplomacy is to study and explore the politics of human rights, the processes of democratization in societies that were once under autocratic or totalitarian governments, and the experiences of societies currently in transition around the world. Our ambition is to foster partnerships, international dialogue, and greater global exchange in the areas of human rights, democratization and diplomacy. Our experiential basis and point of departure is Eastern and Central Europe, the home of Václav Havel. As the struggle that concluded in 1989 with the rebirth of democracy from totalitarianism in said region recedes from the attention of younger generations, the values upheld and the freedoms won more than 30 years ago must be preserved in research, publication, and implementation in all areas of public affairs and in service to the concept of an open society.

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