Steven J. Green School of International & Public Affairs - Judicial Independence (21523)

VÁCLAV HAVEL PROGRAM FOR HUMAN RIGHTS & DIPLOMACY

CONSTITUTIONAL CONSIDERATIONS FOR A FREE CUBA: JUDICIAL INDEPENDENCE IN CIVIL AND COMMON LAW SYSTEMS Jeffrey Scott Shapiro Eloy Viera Cañive Marcell Felipe

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 Constitutional Considerations for a Free Cuba: Judicial Independence in Civil and Common Law Systems, by Jeffrey Scott Shapiro, Eloy Viera Cañive, and Marcell Felipe. 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 Cuban democrats 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 —Václav 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 in resisting communism in the 1970 and the 1980s. It could build on the lessons in the transition from totalitarianism to democracy enabled by the Velvet Revolution of 1989, from Václav Havel’s “legacy”, its rich history of engagement in Cuban matters, and 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” .

Here is the principal question the Cuba Initiative is focused on, as a partner in dialogue with Inspire America Foundation, as it was raised by its founder Marcell Felipe: “If and when there is a regime change in Cuba and there is a consensus for transition to democracy, what are the steps to be taken in that particular moment?

It is clear that the answer to this fundamental question must first begin with the uniqueness of the Cuban case, and the specificity of 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 domestic Cuban matters and adopt a position of “spectateurs engagées” (engaged observers) instead.

What must be, however, taken into consideration at the same time 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 our East Central Europe in the miraculous year of 1989, and, of course, in Chile in the end of same year, after General Augusto Pinochet was replaced in the presidential palace in Santiago de Chile, as the result of democratic elections, by Christian Democrat Patricio Aylwin.

There are four areas that we have 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.2 There are three main issues we were dealing with in this debate: (1) the question of value-anchoring of the future Cuban Constitution and how to get there from the status quo; (2) the question of human rights obligations and the Cuban international responsibility erga omnes; (3) the question of separation of powers: 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

Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

CONSTITUTIONAL CONSIDERATIONS FOR A FREE CUBA: JUDICIAL INDEPENDENCE IN CIVIL AND COMMON LAW SYSTEMS On July 14, 2018, the Cuban Communist Party (CCP) drafted a proposal for a new constitution, which was submitted to the National Assembly of People’s Power (NAPP) for consideration.

The proposal was part of a purported push for reforms to be adopted by its so-called unitary system of government, a term the Castro regime has used to create a veil of legitimacy for its political process, which is controlled by a small number of individuals who control the core of Cuba’s real power structure, the Communist Party.

The new constitutional document, which went into effect in 2019, contained nearly twice the number of articles as the original Soviet-style Cuban Constitution of 1976. In both instances, the regime claimed that the legal frameworks were passed by referendum by more than 99 percent of the vote.

Despite the regime’s depiction of the new “constitution” as providing more basic rights, it did little to repeal critical parts of the 1976 Constitution that subjugated all rights to “the organized vanguard of the Cuban nation, and the superior directing force of both society and the State… for the construction of socialism and advancement of communism.”

This left the Cuban people in the same ineffective position they have suffered in since Castro’s 1959 revolution, which failed to deliver its promise to restore the civil liberties originally guaranteed by Cuba’s 1940 Constitution, but suspended by General Fulgencio Batista after his 1952 coup d’état. The structure of Castro’s new “unitary” government completely stripped any semblance of separation of powers away from Cuba’s government, instituting a socialist or Soviet law system in which the Cuban judiciary was subordinate to the communist-ruled NAPP. The result is a system that leaves the Cuban people powerless to challenge the constitutionality or legitimacy of any law passed by the NAPP, any decree passed by the Council of Ministers, or any decree-law passed by the Council of State.

An independent judiciary, operating as a separate and autonomous branch of government, is vital for the Cuban people to enjoy true liberty. To achieve such judicial

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independence, Cuba would have to evolve from a Sovietstyle law system to a traditional Western-style civil law system with or without a civil code, or a common law system that uses a type of judicial review. The purpose of this preliminary report is to explore the antecedents of the civil law and common law traditions and Cuba’s judicial past and present in the light of those constitutional frameworks to determine the most fitting interim framework for a future democratization process in Cuba.

AN OVERVIEW OF CIVIL LAW AND COMMON LAW SYSTEMS: ROMAN LAW, BRITISH COMMON LAW, AND THE FRENCH NAPOLEONIC CODE Before Cuba declared independence from Spain during the Spanish-American War, it largely relied on Spanish law and its civil code. Even after an independent Cuba ratified a new constitution in 1901, many Spanish civil codes remained in effect until 1987, and Cuba continued to rely on a civil law system. Therefore, Cuba’s system of laws and judicial framework are deeply rooted in and reflect the tradition of civil law.

The origin of civil law dates to classical Rome and evolved from its early republican era through the days of the Roman Empire, setting the foundation for canon law of the Roman Catholic Church, early Germanic law, the Napoleonic Code of France, and the Chilean Code. Since Roman law provided the earliest framework for civil law, the terms are often used interchangeably.

In contrast, the common law system, the roots of which can be traced to Rome, but substantively began in medieval England, is used in the United Kingdom and the United States.

Some common law systems, such as that in the United States, relies on the doctrine of “stare decisis,” a protocol of judges and higher court justices respecting precedents from earlier judicial opinions. However, the United Kingdom, although a common law system, does not rely on stare decisis: its constitution guarantees “parliamentary sovereignty” or what is also known as “legislative supremacy.” Simply put, in the United States, the courts

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have the power to strike down a law passed by its Congress, whereas in the United Kingdom, the Parliament has the power to strike down court decisions in conflict with its laws.

In common law systems that rely on stare decisis or case law, such courtroom precedents are often accepted as incremental adjustments to the original laws passed or ratified by a separate, legislative branch that is considered coequal in its authority. These precedents, referred to as case law, define more narrowly the broader textual language originally set by the legislature. Although some modern civil law systems have implemented elements of the British common law system into their legal processes, most civil law systems rely heavily on the textual language of the laws passed by their legislature in the form of civil code or statutes.

Still, civil law and some faint elements of the common law systems can be traced to the early days of Rome, which used both codes and edicts as a guide for law. Roman jurisprudence began with the Twelve Tablets in 449 BC, which modified existing customary laws and centered on civil procedure and private law or laws that guided interaction between private citizens, not their relationship with the government. As Roman jurisprudence evolved, the law was amended to permit marriage between plebeians and patricians (Lex Canuleia, 445 BC), limited ownership of public land (Leges Licinae Sexitae, 367 BC), and enabled plebeians to have access to positions within the clergy (Lex Ogulnia, 300 BC).

During this early pre-classical period of Roman law, the practice of law evolved into a professional competency with legal jurists, magistrates, and praetors. Although praetors were not legally bound by one another’s decisions, they often relied on rules handed down in edicts of past decisions. It is in this practice we can see the forerunners of the common law practice of relying on precedent and the doctrine of stare decisis.

About AD 130, the legal jurist Silvius Julianus developed a standard form of the praetor’s edict: it described the basic elements necessary for a legal action to go forward and what constituted a valid defense. Although Julianus’s edict was not binding law, it served as a comprehensive legal code to guide praetors in their decision-making process. It created a system of private law premised on the distinction between persons (personae), things (res), and legal actions (actiones). It also recognized different types of contracts for sale, services, work, and hire and distinguished the legal right of ownership from mere possession.

The Romans also developed a system of public law that served as a framework for the government that was structured around legal concepts later used in the United States: the separation-of-powers doctrine, a system of checks and balances, scheduled elections, an impeachment process, use of the filibuster, a quorum requirement for the Senate, and veto power for the executive. Many of these concepts were seen as embodied in the Roman constitution, although that constitution was never actually written down. It was instead a set of principles that evolved throughout the republican era. It was in this tradition that we see the early conceptual stages of precedent and the common law system.

Roman law continued to develop until the Republic splintered and then made the transition to the Roman Empire after the assassination of Julius Caesar in 44 BC and the Roman Senate’s grant of kingly authority to Rome’s first emperor, Caesar Augustus (Octavian), in 27 BC. Rome’s republican law was slowly superseded during the Pax Romana, which lasted several hundred years, by three codes of imperial law—the Codex Gregorian, Codex Hermogenianus, and Codex Theodosianus. However, from the third to the sixth century as Rome’s peaceful era was disrupted by barbarian invasions from early Germanic peoples, Slavs, and the Huns, Roman emperors asserted more control, transforming republican law into monarchial rule.

When the Eastern Roman (Byzantine) emperor, Justinian I took power in AD 527 in Constantinople, he decided that the legal system needed reform and renovation. In the following year, he created a commission to review the three imperial codes from the empire and the many different edicts, legal doctrines, and jurisprudence first promulgated in the Republic. Although the commission only lasted 14 months, Justinian continued to develop legal doctrines that came into effect in 534 and are today known as the Corpus Juris Civilis or Justinian Code.

The Corpus laid the foundation for ecclesiastical canon law, the legal system for the Catholic Church. It was used throughout the Byzantine Empire and later in Western, Central, and Eastern Europe, including Russia—serving as the basis of early German law and today’s European civil law system and its use of civil codes. It also indirectly affected Anglo-Saxon law through its impact on canon law, despite the Romans’ retreat from England in AD 400 (the influence of Roman law was stronger in England after the Norman invasion in 1066). Roman law continued to develop and have significant influence in the Eastern (Byzantine) Roman Empire until the fifteenth century. It became

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Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

the basis for Scots law and significantly affected the legal process in the Holy Roman Empire, an alliance of multiethnic territories in Central and Western Europe that dissolved during the Napoleonic Wars in 1806.

The Western Roman Empire collapsed more than a millennium before the Eastern Roman Empire. Into the power vacuum came the Germanic peoples, who wrote nearly a dozen legal codes in the Early Middle Ages that reflected the influence of both Roman law and canon law. For example, the early fifth-century Code of Euric, imposed by the Visigoths, regulated relationships between the Romans and Goths, and Charlemagne issued the ninth-century Lex Saxonum and Lex Angilorum.

After the Norman invasion of England in 1066, legal systems began to evolve in separate, distinct directions throughout Europe. Although most of Europe continued using civil law and codes, England adopted feudal law. Under Norman feudal law, lords presiding as judges over manorial courts conducted “custumals,” private surveys to record the judicial customs, decisions, and principles being used across the country. In time, various monarchs began using the custumals as means to unite their kingdoms.

As commerce grew, so did the number of negligence and intentional tort cases and disputes over contracts, which led in turn to the “adversarial system.” The doctrine of precedent was adopted during the twelfth and thirteenth centuries to collectivize and streamline the many judicial decisions and doctrines being recorded throughout England. This gave birth to the common law system, which was given this name because it created consistent or “common law” from precedents set by judges and applied consistently throughout all the courts of the English kings. This reliance on precedent soon became known as the doctrine of stare decisis.

This collective desire to implement common law standards and establish parliamentary democracy most likely inspired the rebellious barons who took control of London in 1215 and compelled King John to sign the Magna Carta. In its 63 clauses, it subjected all Britons equally to the law, guaranteed those accused of a fair trial, and prohibited unlawful imprisonment.

After common law systems were established in the United Kingdom and the post-Revolutionary War United States, there were failed attempts in France to create a single legal code.

In 1791, France’s Constituent Assembly voted in favor of the codification of French laws, and its Constitution of 1791 guaranteed such a code. In 1793, a special commission was

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appointed to create a nationally recognized code, but attempts to adopt it failed until 1799 when Napoleon came to power.

He made codification of the law a priority and by 1801 had a completed draft that underwent three years of review by the Council of State. The “Civil Code of the French” was finally published in 1804 and was renamed the “Napoleonic Code” in 1807. Today it is one of the most influential and widely used civil law codes.

Many of its principles were not adopted from earlier French law or even Germanic law, but rather Justinian’s sixth-century codification of Roman law, the Corpus Juris Civilis. Yet, where the Corpus divided laws into those affecting (1) persons, (2) things, and (3) actions, the Napoleonic Code had four categories: (1) persons, (2) property, (3) acquisition of property, and (4) civil procedure.

Many scholars attribute the influence and wide use of the Napoleonic Code to its clarity, which makes it easy to understand. It has been used as the basis for legal systems not only in Europe but across the globe. For example, it is the basis for the Chilean Civil Code, which was adopted in 1857 and was translated into Arabic from 1881–1883 to serve as the basis for the Egyptian Civil Code. The Spanish Civil Code, enacted by royal decree on July 24, 1889, has had the greatest impact on Cuban law. It incorporated many of the doctrines of the Napoleonic Code of its neighbor France.

CUBAN LEGAL HISTORY FROM THE SIXTEENTH CENTURY TO THE PRESENT Today, civil law still is the most common legal system, but one-third of the world’s population lives in common law jurisdictions, including the United Kingdom and the United States. Both civil law and common law systems are based on the concept of the legislative and executive branches of government having separate powers. Civil law systems inherently rely on code defined by the legislature, whereas common law systems reserve the power to further define and narrow interpretations of legislative acts in their legal opinions, which become case law under the doctrine of stare decisis. Some common law jurisdictions use the codification of law to strike a balance between the legal authority in the legislature and judiciary. Conversely, in some civil law systems, the reliance on code as defined by the legislature

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is balanced by constitutional courts that act as a check and balance on the legislature or parliament. Although France’s Napoleonic Code prohibits stare decisis, it does not eliminate the court’s ability to engage in judicial review. Article 4 requires courts to engage in judicial interpretation of laws and regulations to fill in uncodified legal gaps, but the legal opinions are not binding or law.

A Spanish Colony Spain established colonial settlements in Cuba during the early 1500s, and implemented the ‘encomienda system,’ which awarded Spanish conquistadors free labor from non-Christians they conquered in foreign lands. This veiled form of slavery was justified by the Spanish conquerors as a means to protect the indigenous peoples from invasion and to educate them in Christian beliefs and practices. In 1527, the first African slaves were imported to Cuba.

After a series of failed reforms to protect the rights of indigenous peoples of the Americas, Spain adopted the ‘New Laws’ in 1542 to end slavery, designed to end the encomienda system. This raised the ire of some conquistadors and was at times met with non-compliance and resistance.

Under pressure, the Spanish Crown revoked the restriction that slaves could not be inherited in 1545, but in 1548 Dr. Perez Gonzalo de Angulo was appointed Governor of Cuba, and immediately declared the liberation of all native indigenous peoples. The New Laws resulted in the liberation of thousands and is today recognized as the first set of human rights laws.

From the time of first contact with the Europeans, Cuba was the subject of a series of power struggles between the Spanish, French and British, ultimately inspiring strict Spanish military rule in the early 1800s. in 1537, a French fleet occupied Havana, and corsairs blockaded Santiago de Cuba. In 1628, a Dutch fleet plundered a Spanish fleet in Havana Harbor, and in 1662 a British fleet captured Santiago de Cuba for several years. In 1741, the British captured Guantanamo Bay and then Havana in 1762 during the Seven Years’ War. In 1763, the British ceded Cuba back to Spain as part of the Treaty of Paris. Yet Britain’s economic activity continued to accelerate throughout the Caribbean, and the Spanish military soon came to realize it had a gold mine in the use of Cuba’s resources, namely its cattle and sugar, and the island’s ports for trade and naval domination.

The Influence of Spanish Military Code: The Cuban War for Independence and the Spanish-American War As Cuba’s refugee and slave population increased, the call for independence and self-rule grew, which the Spanish military saw as undermining their authority. Unlike the U.S. Southern states (and later the short-lived Confederate States of America), Spanish law contained a provision allowing slaves to buy their freedom. As a result, there were many free AfroCubans on the island.

To maintain control, Spain tightened its grip on the island by appointing Spanish “Captain Generals” to rule it by strict Spanish military codes. These codes, which essentially empowered the military to act in a perpetual state of emergency martial law, were often used as a cover by the Spanish military to justify massacres and crimes against humanity. These repressive measures, coupled with the 1868 democratic “Glorious Revolution” in Spain, inspired the Ten Years’ War, Cuba’s first war for independence, which lasted until 1878.

Shortly after the 1868 Glorious Revolution, Martinez Campos was sent to Cuba where he was assigned to quash the rebels’ fight for independence. After several years in the field, Campos returned to Spain as a Brigadier General and, after another victory in Catalonia, was appointed governor of Cuba in 1876, a position that continued to be referred to as “Captain General.”

In 1878, Campos negotiated a peace treaty with the rebels by granting freedom to those previously enslaved, and he ultimately abolished slavery completely. When he returned to Spain in 1879, however, he was criticized by hardliners for opposing race-based slavery. Campos returned to Cuba in 1895 to help the Spanish quell the second Cuban War of Independence.

After months of unsuccessfully stopping the rebels, Campos responede to pressure from his own government to resort to extreme tactics, including ethnic cleansing. He proposed concentrating hundreds of thousands of rural Cubans behind barbed wire in Spanish-controlled towns in Cuba, but ultimately decided against implementing the strategy and returned to Spain instead.

Campos’s departure allowed his position to be taken by a much harsher Captain General—Valeriano Weyler—who had earned

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Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

a reputation in Catalonia for striking fear into communists and anarchists. He was dispatched to Cuba by the Conservative president of Spain, Antonio Canavas del Castillo, with the high expectations of the Spanish aristocracy that he would crush the Cuban rebellion.

But fighting Cuba’s insurgent force, which used many stealth tactics and did not fight on a traditional battlefield, would prove harder than Weyler expected. Facing the prospect of disappointing the Spanish hierarchy, he came to the same conclusion his predecessor did that the rebels needed to be separated from the civilians.

By the end of 1897, the Spanish Captain General had separated hundreds of thousands of noncombatant men, women and children into cities and engaged in a massive countrywide campaign of burning crops and destroying livestock to make the countryside an inhabitable desert for the insurgency.

Weyler’s “reconcentrado” policy had dramatic consequences, creating health problems and starvation that resulted in the deaths of 150,000–300,000 people.

When Castillo was assassinated in 1897, Weyler was recalled to Spain and replaced by Captain General Ramon Blanco, who had previously served as a colonial administrator in the Philippines. Meanwhile, the death toll created under Weyler had sparked a backlash in the American press; for example, an April 1898 news article published by the Salt Lake Tribune referred to the former Captain General as “The Butcher.” This negative publicity coupled with the earlier February 1898 mysterious explosion that sank the USS Maine in Havana harbor led to the Spanish-American War. Blanco did everything he could to convince the United States that the explosion on the USS Maine was an accident and unrelated to any action by the Spanish, and internal U.S. military investigations suggest this is probable. Still, as the United States continued to signal that it was preparing for war, Blanco turned to his rebel opponents to forge an alliance but was rejected.

Spain’s oppressive abuse of military codes to treat the island as a battlefield had already laid the groundwork for Cuban admiration of the United States. The father of the Cuban independence Cuba Libre movement, Jose Marti, was a passionate admirer of President Abraham Lincoln for his crusade against slavery in the U.S. South, and he boldly proclaimed his desire to build an alliance with Americans.

Before he died in 1895, his movement had already established

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offices in Florida to raise awareness about Spanish injustices in Cuba.

On April 20, 1898. U.S. President William McKinley signed the Teller Amendment, a congressional resolution demanding (1) the Spanish withdraw their forces from Cuba and (2) and authorizing the president to use U.S. force to help the Cuban rebel forces win their independence from Spanish colonial rule. His successor, President Theodore Roosevelt, was then Secretary of the Navy and a staunch supporter of Cuban independence.

The Spanish-American War only lasted less than four months, because the Spanish Empire’s fleet was no match for modern U.S. naval power. The Treaty of Paris was signed on December 10, 1898, ending centuries of Spanish military rule in Cuba. To guarantee the continued U.S. presence in Cuba and protect Cuban independence from potential colonial invaders, Congress passed the Platt Amendment on March 2, 1901. In the wake of Cuba’s independence from Spain and its new relationship with the United States, it needed a new constitution.

U.S. Military Law and the Transition to Cuban Judicial Independence: The 1901 Cuban Constitution and 1909 Organic Law of Judicial Power Cuba’s transition as a Spanish colony to its emergence as an independent republic led to profound transformations in the structure of the Cuban legal system. During the U.S. military occupations, American authorities also used military law to effectuate significant changes to the Cuban administration of justice and move it toward a new, independent judicial model.

One of the most significant changes was the creation of Cuba’s Supreme Court of Justice on April 14, 1899, mandated under Military Order No. 41. In its inception stage, the Cuban Supreme Court followed the model of the United States Supreme Court and only had one courtroom. But two years later in 1901, American authorities expanded the Supreme Court’s courtrooms through Military Order 95. This order established three courtrooms—civil, criminal, and contentiousadministrative—moving Cuba closer to the civil law model that had prevailed throughout its history.

In 1900, the United States invalidated the Spanish Criminal Procedure Law of 1870, which relied on judges to rule on

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correctional and criminal matters and replaced it with a common law jury model, a concept first introduced in the British Magna Carta. It also shifted Cuba’s judiciary to a system with elected judges. These changes marked important innovations in the Cuban judicial system.

When the government of Cuban president Tomás Estrada Palma collapsed in 1906, President Theodore Roosevelt ordered U.S. troops to restore order in Cuba; this Second U.S. Occupation lasted until 1909. Cuba’s then provisional governor, Charles Edward Magoon, took this opportunity to appoint a drafting commission to propose needed reforms for the Cuban judicial system. The commission had twelve members; two of them were U.S. officials—Enoch Crowder, who later served as a U.S. ambassador to the island, and Planton C. Winship, a consultant lawyer to the U.S. Army.

By 1909, the commission drafted the first Cuban Organic Law of the Judicial Power. Although it was created by U.S. authorities and two Americans were members, the commission ultimately determined it was impossible to use a legal model other than civil law in judicial reform. A letter sent to Governor Magoon stated, “In view of the fact that the current judicial order is the only one compatible with the procedural system by which governs the Republic, the Advisory Commission has deemed it appropriate to follow the current judicial organization in general lines, compiling Spanish laws and royal decrees, military orders and the laws of the Cuban Congress, on the matter” (Llaca Argudín 1919). The influence of Spanish legislation in force even after the founding of the Republic proved to be a challenging obstacle to overcome or abandon.

The Cuban Legal Framework from 1909–1959 Still, the United States also shaped the development of the Cuban legal framework, and its influence was never limited to a discussion of implementing judicial review. Legal reforms modeled on both the Spanish and U.S. legal systems continued to be implemented, culminating in the Constitution of 1940.

This complex evolutionary process is why many believe the Constitution of 1940 to be a reliable benchmark for a Cuban transition from authoritarianism to democracy.

The first Cuban republican constitution was promulgated in 1901 and governed, almost without modifications, until 1928.

Article 83 established the first Cuban formula of judicial review.

It entrusted the defense of the constitution to the judiciary

but did not spell out the ways in which such judicial authority would be carried out.

On February 3, 1934, through the Constitutional Law, Cuba made it possible to challenge unconstitutional laws, requiring a minimum of 25 citizens to file an appeal of unconstitutionality before the Supreme Court. If that appeal was declared well founded, the law could no longer be applied. The Constitutional Law of 1934 also empowered a single citizen to establish the public action of unconstitutionality when there was an attack on his individual rights.

The Constitution of 1940 crystallized the process of democratization and the strengthening of Cuban institutions, particularly the right to appeal unconstitutional laws, that began after the Revolution of the 1930s. It created the Court of Constitutional and Social Guarantees, which was based on the Spanish Constitutional Guarantees Court of 1933.

Once again, Cuba chose a civil law model but expanded and improved it. Where the Spanish court was independent of the rest of the powers of the state and even the judiciary, the Court of Constitutional and Social Guarantees in Cuba was an integral part of the judicial branch: it was one of the chambers of the Supreme Court. This model is typical of several Latin American countries.

In contrast to U.S. judicial review, which occurs at various levels of courts, Cuba’s 1940 Constitution mandated that the constitutionality process could only be exercised by the Supreme Court through the Court of Constitutional and Social Guarantees. When a constitutional challenge reached lower court judges, they would suspend the process and send the file to the Court of Constitutional and Social Guarantees (Stone 2001). This court could review legal acts passed by any authority, body, or official, ranging from both legal and political issues to remedies of abuses of power. The constitutional control model promoted by the Constitution of 1940 proved its efficiency, even in autocratic scenarios such as the dictatorship of Fulgencio Batista and the first years of the Castro Revolution.

Cuba’s Present-Day Socialist Law System and Its Lack of Judicial Independence The Constitution of 1940 was only in effect for 12 years, having been suspended by Batista in 1952 after his coup and

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Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

establishment of a military dictatorship. In fact, restoration of the Constitution of 1940 was one of the declared but unfulfilled objectives of Fidel Castro’s “Revolution,” and it is still seen by a significant number of Cubans as the document that can guide Cuba’s transition from authoritarianism to democracy.

Cuba currently has a socialist law or “Soviet law” system, which some scholars contend arose from the civil law system. Unlike traditional Western civil law systems such as France’s Napoleonic Code or early Germanic law, however, socialist law is driven by a Marxist-Leninist ideology that prioritizes the political dominance of the Communist Party over judicial independence. Socialist law is also based on codes that ensure property is owned almost exclusively by the state (Quigley 1989) and differs significantly from Western common law systems. Although Cuba’s constitution provides a framework for three branches of government, the branches are neither separate nor coequal. This fundamentally differs from the U.S. Constitution’s foundational framework, which in its first three articles vests coequal power within each branch of government to create a system of checks and balances.

Even though Cuba’s constitution declares itself the supreme law of the land, the state communist apparatus uses many residual military codes implemented by the United States during the Spanish-American War in 1898 when it fought Spain on behalf of Cuba’s independence (Clark 2013). In addition, many of the country’s new laws are implemented by the Council of State as “decrees” and are later adopted by the country’s unicameral legislature, the National Assembly of People’s Power (Henken et al. 2013) Cuba’s constitution and its unicameral legislature are subordinated to the communist executive power structure run by a small circle of individuals who control the Cuban Communist Party (CCP)’s Central Committee and the regime’s Council of State and Ministers. The result is a unitary system that creates the appearance of a legitimate political process when in fact the Cuban Communist Party controls the passage of laws and dictates the selective enforcement of laws when it benefits the party. Without a coequal judiciary operating under a constitutionally mandated separation-of-powers clause, courts lack the power to guarantee the Cuban people civil rights, civil liberties, and basic human dignity.

From the time it rose to power in the wake of Fulgencio Batista’s 1959 defeat, Fidel Castro’s “revolutionary government” operated without any constitutional mandate

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or restrictions until 1976. Despite Castro’s promise to restore civil liberties guaranteed by the 1940 Constitution but suspended by Batista in 1952, Castro did the opposite after taking power in Havana. The suspended civil liberties were never revived, and Castro buried what was left of the 1940 Constitution under a complete restructuring of a new regime, leaving the country without any constitution for nearly seventeen years.

The passage of the first Soviet-style Cuban constitution coincided with the bicentennial of the American Revolution; in the February 1976 Cuban constitutional referendum, supposedly 99 percent of the island’s population voted to approve the new constitution. The consensus of legal scholars is that the 1976 constitution was modeled after the original 1936 Constitution of the Soviet Union, institutionalizing centralized control of the market and identifying Cuba as a secular state. It enabled state security officials to ensure the expulsion of the bourgeoisie ruling class, eliminated intellectual property protections and private property of any kind, and nationalized the means of production. In 2002, the constitution was amended to ensure that the island’s socialist system would be irrevocable.

Although the 1976 constitution guaranteed civil liberties, including freedom of speech (Article 53), freedom of assembly (Article 54), and freedom of conscience and religion (Article 55), those rights were subordinate to Article 62, which memorialized that “none of the freedoms recognized for citizens can be exercised… contrary to the objectives of the socialist state.” All basic rights were also subject to Article 5, which expressly defines the CCP as “the organized vanguard of the Cuban nation, and the superior directing force of both society and the State… for the construction of socialism and advancement of communism,” effectively subordinating Cuban law to the nation’s single political party.

Like Western civil code systems in France, Germany, and Spain, the 1936 Constitution of the Soviet Union had implemented an “inquisitorial system” of criminal justice, which mandates a collaborative process between the prosecution and defense; the 1976 Cuban constitution enshrined that process. This is a strong contrast to the American “adversarial” criminal justice process inherent in the U.S. Constitution’s Fourth Amendment guarantee against unreasonable search and seizure, the Fifth Amendment’s guarantee against self-incrimination, and the Sixth Amendment’s right to confront and cross-examine their accuser. Unlike Western civil systems, the Soviet

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Union’s inquisitorial system named the state prosecution the “provider of justice,” which soon became a vehicle of the state communist apparatus. Tribunals implemented “revolutionary justice” to punish so-called counterrevolutionaries and squash resistance against the Kremlin or opinions dissenting from communist ideology.

In July 2018, Raul Castro, CCP’s General Secretary, appointed a party task force to work with the National Assembly and Communist Party to create a new constitution, which went into effect the following year in 2019. Despite the Castro regime’s attempt to depict the constitutional changes as a progressive step forward, the 2019 constitution only added more “rights” without empowering the Cuban people with an independent judiciary that could guarantee them. It also strengthened the power of CCP officials by mandating a complex reorganization of how the Council of Ministers and State related to one another and the National Assembly (Recio 2018).

In reality, Cuba’s 2019 constitutional changes could not effectuate any actual changes, given the wording of Article 5: “The Communist Party of Cuba, unique, Martiano, Fidelista and Marxist-Leninist, the organized vanguard of the Cuban nation, sustained in its democratic character as well as its permanent linkage to the people, is the superior driving force of the society and state” (Recio, 2018). Thus, the courts would necessarily lack the autonomy or power needed to render any decision that would supersede the CCP. Only a few months after its passage, Decree-Law 370 was enacted on July 4, 2019, to coincide with the anniversary of U.S. independence: it effectively gave the regime absolute control over all internet speech. According to Article 68 of the decree, the state can prosecute anyone “spreading information contrary to the common good, morals and decency, and integrity through public data transmission networks.” It built on Decree 349, which was enacted in 2018, that created a system of “prior restraint” for artists and writers by requiring them to obtain authorization for both public and private performances and exhibitions (Amnesty International 2018).

Decree-Law 370 generated international protests: in May 6, 2020, a statement signed by 47 human rights organizations and independent press media was issued by Freedom House citing how Decree-Law 370 contradicts Articles 54 (freedom of expression), 55 (freedom of the press), and 56 (freedom of assembly, demonstration, and association) of the 2019 Constitution.

Similar contradictions exist such as in Article 73 (previously Article 51 in the 1976 Constitution), which asserts, “Everyone has a right to an education,” despite Cuba’s university system using its discretionary power to reserve admission only for “revolutionaries.”

Soviet influence continues in political mechanisms designed to obstruct judicial independence and limit the jurisdiction of the courts. This is apparent in the subordination of the Supreme People’s Court to the National Assembly of People’s Power, the lack of budgetary independence and the Ministry of the Interior’s power to appoint judges. This Soviet influence contributed to the elimination of judicial independence and checks and balances, resulting in a model that defines itself as unitary with no separation of powers and no coequal branches of government. Even today, constitutional matters are expressly excluded from the jurisdiction of the courts: determining the constitutionality of laws remains in the hands of the body theoretically in charge of issuing them: the National Assembly of People’s Power (NAPP).

Being a Lawyer or Judge in Communist Cuba Although Cuban Communist Party membership is not required to serve as a “professional judge,” judges are required to pass an exam administered by the Supreme Court. State security officials can arbitrarily and formally intervene in the presentation of evidence and even interfere in the adjudication of cases. Professional judges are flanked by “lay judges”—non-lawyers nominated by “workplace assemblies” that resemble “neighborhood committees” (more formally known as Committees in Defense of the Revolution; CDRs), which often act as informants for the Communist Party.

After the revolutionary government took power, there was a sharp decline in the number of lawyers because Castro himself discouraged young Cubans from studying his own profession of law. The private practice of law was outlawed, and law school curricula eliminated coursework on capitalist notions such as commercial and contract law. Enrollment at the University of Havana College of Law plummeted throughout the 1960s and remained low throughout the 1970s and 1980s. This was despite the efforts in the mid1960s by Blas Roca Calderio—who served as head of the

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pre-revolution Cuban Communist Party for 28 years and later chaired the committee that wrote the first socialist constitution in 1976—to strengthen the legal system so it could begin to institutionalize the revolution in the judicial process. Law school enrollments did not increase until the 1990s when they implemented a more general curriculum of basic legal history and theory.

Just as the 1976 Constitution’s Articles 5 and 62 subordinate rights to the “objectives of the socialist state,” lawyers were required for several years to uphold the principle of socialist legality in their practice of lawmaking, making it legally impossible for a criminal defense lawyer to be a “zealous advocate” for a client against the state, the standard generally required by state bar associations in the United States. Cuba amended the law in 1984 to require lawyers to represent their clients to their maximum potential, but this did little to change the reality of the practice, as was evidenced by the “passive defense” of General Arnaldo Ochoa, which resulted in his conviction and subsequent execution.

To practice law in Cuba today, one must graduate from law school, receive approval from the Ministry of Justice to practice law, and join a collective law practice known as a “Bufetes Colectivos,” which is monitored by the National Office of Bufetes Colectivos (ONBC). Once an attorney attains membership in a Bufetes, he or she can practice law throughout Cuba. Still, the Cuban legal system remains substantially procedural and without power or substance.

Judicial officers effectively remain subordinate to party doctrine, and courts lack a mechanism to guarantee basic rights or strike down the many unconstitutional decreelaws passed by the Council of State that generally “trickle upward” for automatic passage by the National Assembly.

Constitutional Courts: A Specific Judicial Review Model Alternative for the Transition in Cuba For Cuba’s totalitarian system to make a successful transition to a free society that guarantees civil rights and liberties, as well as electoral and property rights, it must eliminate any constitutional provision that subordinates citizen rights to the objectives of the socialist state or advancement of communism; instead, the constitution must emphasize the independence of the judiciary. Such judicial 12

independence would require (1) abolishing the collective practice of law mandate, (2) removing Cuban “lay judges” who lack a legal education and instead act as communist political officers within the judiciary, and (3) arming the judicial branch with mechanisms to conduct independent review of cases and potentially of legislative acts.

To guarantee the preservation of judicial independence, Cuba’s legal system would have to evolve from a socialist law system to either (1) a traditional Western-style civil law system with a civil code, (2) a traditional Western-style civil law system without a civil code, (3) a British-style common law system that exercises “legislative supremacy” without judicial review, (4) an American-style common law system that emphasizes separation of powers by using the judicial review doctrine through the use of U.S.-style Article III courts or European-fashioned “constitutional courts,” or (5) a hybrid system that uses both civil code and common law such as the one used in Canada.

With the collapse of the Soviet socialist system in Eastern Europe, most countries in that bloc maintained a civil law judicial model consistent with their legal traditions.

Constitutional courts were created specifically to hear the constitutionality of laws and government acts. In a legal system that uses constitutional courts, the power to review the constitutionality of laws is not vested in different courts as in the U.S. system of judicial review, but rather in one particular high court that determines whether laws passed by the legislature or other branches or bodies of government are in conflict with the country’s constitution or with the basic rights guaranteed by the constitution.

Influenced by the constitutional theories of Hans Kelsen, the first constitutional courts were created in Austria in 1919 to review laws passed by Austria’s federal states and in Czechoslovakia in 1920 to review the constitutionality of laws passed by its parliament.

Implementing judicial review into a civil law system has helped some countries, such as Bulgaria, to preserve democracy. The Bulgarian Constitutional Court played a major role in curbing the policies of the Bulgarian Socialist Party (PSB), which won the 1994 elections (Melone 1996).

The court used its newfound power of judicial review to strike down laws obstructing journalists from expressing their opinions on political matters. This ended overreaching mass media regulations. It also provided a binding interpretation of the free expression provisions of the Bulgarian constitution, which invalidated the PSB’s mass

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media policy and the National Radio and Television Act of 1996 that imposed significant restrictions on the media.

The effectiveness of the Bulgarian model suggests that it would make sense for Cuba to consider a judicial review model consistent with the traditions to which the country has historically been linked, which would facilitate any transition process.

Today, 63 countries use separate and distinct constitutional courts, and the practice has spread across the globe to different countries and continents. They are often found in democratic states with civil law systems that use such courts as a check and balance against other branches of government without implementing the traditional British and U.S. common law system of stare decisis in lower court levels. Countries using constitutional courts include Belgium, Chile, Colombia, Egypt, France, Germany, Spain, Italy, Peru, Portugal, Singapore, and Thailand.

The current communist Cuban justice model was significantly influenced by its Soviet counterpart, but its foundational legal structure and basic organizational methods of judicial procedure maintained the essence of civil law. Cuban courts are made up of chambers that specialize in hearing specific matters. Popular participation in the administration of justice is marked by the presence of appointed lay judges and not by a jury system of one’s peers.

The new Constitution of 2019 opened the door to permit discussion before the courts of constitutional infringements.

However, this formula has been poorly designed with the sole intention of shielding government action from the possibility of judicial review.

Attempting to implement a judicial review model that has never been done before could be interpreted by many sectors of the Cuban population as an attempt to import a foreign model because such a model has no roots in Cuban culture. It could also generate nostalgic patriotism for the past communist regime out of a misguided sense of nationalism. Such a Cuban transition would have to occur rapidly to ensure citizens soon experience the changes they have long hoped for. This would prevent the citizenry from longing for the outmoded system. On the contrary, establishing a foundational system of law completely different from the one historically developed in Cuba could raise significant obstacles.

Transition for Judicial Officers: The Need to Train New Judges and the Feasibility of a Concentrated Judicial Review Model Any judicial transition in Cuba will necessarily require the involvement of many of the lawyers and judges who have practiced for years under Communist Party rule. Today’s Cuban judges have normalized their lack of independence and the outsized influence of external political factors in their work. They have had little training in matters that would serve as the basis for effective constitutional control or U.S.-style judicial review, such as issues related to the constitutionality of laws, government decisions, abuse of power, or human rights violations. Nor do they have much experience in commercial and contractual matters, subject matter areas scarcely litigated in an anti-capitalist economy and environment like Cuba’s.

The model of concentrated constitutional control found in the Constitution of 1940 could be an effective tool for the transition to democracy in Cuba because it would minimize the training needs of these judges. Moving to an entirely new judicial review system like that in the United States would require much more extensive training and take much longer.

Thus, the lack of trained judges in this area most likely requires the most capable human resources to be concentrated in a single constitutional court. This would be consistent with most Eastern European countries that maintained the tradition of civil law during their transition in the post-Soviet era.

Conclusion: Judicial Review and Constitutional Courts Since ancient Roman times, most of the world has predominantly relied on civil law systems and the use of civil code. Although Cuba’s adoption of a U.S.-style common law system would create a coequal system of separate branches of government, it would potentially force the island to rapidly transform its judiciary into a system its practitioners would be unfamiliar with. It could also potentially compel Cuba’s judiciary to rely on ineffective opinions authored during its Marxist-Leninist era or to remain in a standstill state while new case law is created in its new democratic form. Cuba 13

Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

may aim to ultimately shift from a system that utilizes civil law and civil code to common law, but this is impractical during an early phase of a democratic transition.

A more consistent and practical model for Cuba is to rely on the path of its European political ancestors and implement a Western-style democratic form of civil law but with a new, separate, and distinct constitutional court as a check and balance to guarantee judicial review of laws passed by the legislature or decrees and orders adopted by the executive.

Such constitutional courts have proven to be successful in some of the world’s most powerful, democratic societies including France, Germany, and Spain. They have also been used in Latin American countries including Chile, where civil code originated in the Western Hemisphere.

Regardless of which constitutional model Cuba uses during a transitionary period, a separate and distinct constitutional court to empower Cuba’s judiciary would potentially be the most effective and expeditious since it would enable a separate and distinct court with new judges or justices to objectively deliberate on legal challenges without facing the potential risk associated with law or opinions created during Cuba’s Marxist-Leninist era. It would also enable the people of Cuba to be assured that the Communist Party of Cuba is no longer “the organized vanguard of the Cuban nation” or “the superior driving force of the society and state” and would empower its court system with the autonomy needed to render independent decisions and opinions that are in conflict with the Fidelista ideology and Soviet concept of law.

EPILOGUE The July 11, 2021 Protests (11J) in Cuba: Summary trials, arbitrary detention and cruel and unusual punishment In May 2021, the regime published drafts of new legislation including changes to be approved during the upcoming July 2021 plenary session of the National Assembly of People’s Power (NAPP). This included a new Law of the Courts of Justice and new procedural laws, which would have purportedly changed some of the legal dynamics of Cuban criminal procedure.

However, on July 6, 2021, regime leadership announced its decision to suspend the regular July 14 and 16 sessions, using the COVID-19 pandemic as an excuse. This delayed the approval of the drafts of the Law of the Courts of Justice and procedural laws.

On July 11, 2021, just days after the announcement of the suspension, the largest popular protests (11J) since the 1959 revolution erupted across the island, which Human Rights Watch called “overwhelmingly peaceful.”

The report, issued October 19, 2021, indicated that protestors shouted, “Liberty!” or “Fatherland and Life!” (Patria y Vida), referencing a recent song by Cuban artists that repurposed the regime slogan, “fatherland and death” (Patria y Muerte).

Despite this, the peaceful protestors were often met with brute force and repressive retaliation.

“When thousands of Cubans took to the streets in July, the Cuban government responded with a brutal strategy of repression designed to instill fear and suppress dissent,” the report said. “Officials involved in the abuses include members of the intelligence services, known in Cuba as “state security,” the military the national police and the special national brigade of the Interior Ministry, known as “black berets.” Governmentorganized groups of civilians known as “rapid response brigades” were also involved in several beatings. Prosecutors and judges who lack independence from the government enabled and took part in abusive criminal proceedings.”

Diubis Laurencio Tejeda, a 36-year old, died on July 12 after reportedly being shot in the back by a Cuban regime police officer in a small town located on the outskirts of Havana.

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

Some women even reported being sexually assaulted by regime officers. Gabriela Zequeira Hernandez, a 17-year old student arrested in San Miguel Padron, was reportedly detained, made to strip and made to digitally penetrate herself, just for walking by an 11J protest. She later said the officers threatened to take her to “the pavilion,” an area where detainees had conjugal visits.

were often sentenced in “summary” criminal trials, which lacked due process. The report said, that their right to a fair trial was denied often, and their lawyers were censored with little time to present a defense for their clients. Those detained have suffered “human rights abuses including arbitrary detentions, ill-treatment in detention, and abusive criminal proceedings.”

On July 22, she was sentenced to eight months in prison for “public disorder” and on appeal a higher court allowed her to finish her sentence on house arrest. Those detainees who have not received house arrest sentences have continued serving in “dark, crowded and unsanitary prison cells, with little access to clean water or face masks to prevent the spread of the virus that causes COVID-19,” according to Human Rights Watch.

Some media reports have suggested the October 2021 approval of the Laws of the Courts of Justice and Procedure is a direct result of some of the purported due process violations that took place in the wake of the 11J protests as if now, finally real reform was being implemented. This is a false assessment however, since the genesis for the approval of the Laws of the Courts of Justice and Procedure took place months before the mass demonstrations took place.

Unfortunately, Ms. Hernandez’s experience was not an isolated one. According to Human Rights Watch, “Peaceful protesters and other critics have been systematically detained, held incommunicado and abused in horrendous conditions, and subjected to sham trials following patterns that indicate these human rights violations are not the actions of rogue agents.”

Amnesty International echoed those sentiments and accused the regime of trying to cover up their repressive tactics.

“In response to the protests of 11 July, the Cuban authorities have applied the same machinery of control that they have used to target alternative thinkers for decades, but now amped up to a scale we haven’t seen in almost 20 years, and with new tactics including the use of Internet interruptions and online censorship to control and cover up the grave human rights violations they have committed,” said Erika Guevara-Rosas, Americas Director at Amnesty International in an August 19, 2021 statement.

The international human rights organization took aim at President Miguel Diaz-Canel for committing significant due process violations and incommunicado detention, and named six prisoners of conscience: Luis Manuel Otero Alcantara, leader of the world-renowned San Isidro movement; Jose Daniel Garcia Ferrer, leader of the island-wide Patriotic Union of Cuba (UNPACU) political opposition group; Esteban Rodiriguez, an independent journalist who writes for the ADN Cuba news platform; graphic artist Hamlet Lavastida, human rights activist Thais Mailen Franco Benitez and Maykel Castillo Perez, a rapper known as ‘El Osorbo’ who helped compose the world-famous Patria y Vida uprising anthem.

Human Rights Watch reported peaceful protestors were tried collectively in groups of 10 or more in closed hearings, and

Much to the protesters’ misfortune, the suspension of NAPP sessions in July 2021 delayed the implementation of the new reforms and allowed the government to criminalize the July protests without the guarantees of the newer legal framework approved later in October. One of the fundamental critiques the Cuban regime received after the July protests involved summary trials in which many protesters were prosecuted and sentenced without legal representation.

In a strange twist of irony, the legal possibility of being tried without a lawyer purportedly slipped into the pages of history when the new procedural legislation was approved in October 2021. The new Law of Courts of Justice created new constitutional guarantees for those held in detention.

It created, at least formally, a right to make claims before the courts for possible regime violations of their constitutional rights.

Had the Cuban regime approved the laws in early July before 11J, and actually upheld them, the new due process framework could have at least been argued by defendants and criminal defense lawyers alike as legal tools to fight against the repressive tactics deployed by the regime against the protesters.

Of the estimated 1,130 protestors arrested by regime officials for the 11J protests, some were incarcerated on house arrest and others have been sentenced to as much as 10 years in prison for merely engaging in acts expressly protected by the First Amendment of the U.S. Constitution. These rights are inherent in the U.S. Constitution’s express guarantees to engage in free expression, peaceful assembly, and petition the government for a redress of grievances.

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Constitutional Considerations For A Free Cuba: Judicial Independence In Civil And Common Law Systems

In other instances, some reports indicated that Cuban prosecutors are asking the courts for as much as 23 years in prison for a group of minors charged with sedition.

Cubalex, a civil rights group that focuses on Cuban legal issues has reported that more than 500 demonstrators still remain “systematically detained [and] abused” as of the publishing of this report in January 2022—a scathing indictment of the Cuban legal system that suggests little has changed with the 2019 constitutional reforms.

Cuban Observatory of Human Rights. (August 14, 2021). OCDH Demands Independent Investigation Into the Death of Protester Laurencio Tejeda https://observacuba.org/ocdh-exige-investigacionindependiente-sobre-muerte-diubis-laurencio-tejeda/

BIBLIOGRAPHY

EFE. (July 6, 2021). The Cuban Parliament Suspends its July Session Due to COVID-19. https://www.efe.com/efe/america/politica/el-parlamentocubano-suspende-su-sesion-de-julio-por-auge-lacovid-19/20000035-4579908

Amnesty International. (2018, August 24). “New Administration’s Decree 349 Is a Dystopian Prospect for Cuba’s Artists.” https://www.amnesty.org/en/latest/news/2018/08/ cuba-new-administrations-decree-349- is-a-dystopianprospect-for-cubas-artists/

El Pais. (July 22, 2021). Summary Trials Against Participants of the July 11 Protests Begin in Cuba https://elpais.com/internacional/2021-07-22/comienzan-encuba-los-juicios-sumarisimos-contras-los-participantes-enlas-protestas-del-11-de-julio.html

Amnesty International. (2021, August 19). “Cuba: Amnesty International names prisoners of conscience amidst crackdown on protesters.” https://www.amnesty.org/en/latest/ news/2021/08/cuba-amnesty-international-names-prisonersof-conscience/

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Clark, J. (2013). Cuba: Castro’s Revolution, Myth and Reality.

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Human Rights Watch. (October 2021). Cuba: Peaceful Protestors Systematically Detained, Abused Arbitrary Detention, Ill-Treatment, Abusive Trials Affect Hundreds. https://www.hrw.org/news/2021/10/19/cuba-peacefulprotesters-systematically-detained-abused

Constitution of Cuba. (1976). https://www.constituteproject.org/constitution/Cuba_2002. pdf?lang=en.

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Constitution of the United States. (1776). https://www.law.cornell.edu/constitution Cubalex. (2021) “List of July 2021 detainees and disappearances in Cuba.”

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Cuba News Agency. (July 13, 2021). Informative Note on Disturbance in Havana Neighborhood

Llaca Argudín, F. (1919). Organización de los tribunales de Cuba y su y su personal desde 1º de enero de 1899 hasta 31 de julio de 1919. La Habana: Imprenta y Papelería de Rambla, Bouza y Cª.

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

Melone, A. P. (1996). “The Struggle for Judicial Independence and the Transition toward Democracy in Bulgaria.” Communist and Post-Communist Studies 231–238.

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Recio, A. (2018, August 12). “Some Traps in Cuba’s New Constitution. Havana Times. https://havanatimes.org/opinion/ some-traps-in-cubas-new-constitution Stone, S. S. (2001). Constitutional Law. Alexandria, VA: Aspen Publishers.

Voice of America. (Oct. 21, 2021). Cuban Street Protester Sentenced to 10 Years in Prison https://www.voanews.com/a/cuban-street-protestersentenced-to-10-years-in-prison-/6283232.html Wall Street Journal. (July 13, 2021). ‘Patria y Vida’: The Dissident Rappers Helping Drive Cuba Protests https://www.wsj.com/articles/cuba-protests-dissidents-sanisidro-patria-y-vida-11626198332?mod=article_inline Wall Street Journal. (July 26, 2021). Cuban Protesters Get Prison Sentences, House Arrest in Summary Trials. https://www.wsj.com/articles/cuban-protesters-get-prisonsentences-house-arrest-in-summary-trials-11627334035 Welp, Y. (2020). “Deliberation in the Process of Constitutional Reform: Cuba Comparative Context.” Fore Europa-Cuba.

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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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