IV. The Legal Foundation of Repression in Cuba

Cuban law empowers the state to criminalize virtually all forms of dissent. While it includes broad statements affirming fundamental rights, Cuban law also grants officials extraordinary authority to penalize individuals who attempt to exercise their rights. All rights are conditional on compliance with the government. Article 62 of the constitution explicitly states that no rights may be exercised against the state and makes punishable any failure to respect this subordination of rights.

Cubans who dare to criticize the government are subject to draconian criminal and “pre-criminal” charges. These include the Orwellian “dangerousness” provision, which can be used to punish individuals who have not yet committed a crime, on the suspicion that they will commit one in the future; as well as the National Protection Law, which is so broad that it renders any criticism of the government prosecutable as a form of collaboration with the US embargo and thus treason.

Cuba’s judiciary lacks independence, denying dissidents meaningful judicial protection and ensuring that those tried will not receive a fair trial. The constitution states that the judiciary is “subordinated hierarchically” to the executive and legislative branches, which have the power to remove judges at any time. And the Cuban government denies victims of abuse virtually all external protections by refusing to allow monitoring by independent domestic groups, international human rights organizations, and groups such as the International Committee of the Red Cross (ICRC).

Criminalizing Dissent

The Cuban Criminal Code lies at the core of Cuba's repressive machinery, granting Cuban authorities extraordinary power to silence dissent. Numerous Cuban criminal provisions explicitly penalize the exercise of fundamental freedoms, while others are so vaguely defined as to offer Cuban officials broad discretion in repressing critics. 

Cuban authorities routinely characterize peaceful government opponents as “counterrevolutionaries,” “mercenaries,” and “traitors,” and then use these classifications to sentence them under laws protecting Cuban sovereignty.

Cuba’s invocation of state security interests to control nonviolent dissent—for acts as innocuous as publishing articles critical of the government, handing out copies of human rights treaties, or holding peaceful marches—represents a clear abuse of authority. Under the Universal Declaration of Human Rights, restrictions of fundamental rights are only permissible:

for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.[9]

Cuba’s efforts to silence critics fall far outside of these limits.

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information specify certain types of expression that should always be protected, including expression that:

• “advocates non-violent change of government policy or the government itself”; 
• “constitutes criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials”; and
• “is directed at communicating information about alleged violations of international human rights standards or international humanitarian law.”[10]

All of these forms of expression are punishable under Cuban law.

 

Contempt

Cuba penalizes anyone who “threatens, libels or slanders, defames, affronts or in any other way insults or offends, with the spoken word or in writing, the dignity or decorum of an authority, public functionary, or his agents or auxiliaries.”[11] Such expressions of contempt for authority (desacato) are punishable by three months to one year in prison, plus a fine. If the person demonstrates contempt for the president of the Council of the State, the president of the National Assembly, or other high ranking officials—the sanction is imprisonment for one to three years.[12]

Contempt or “insult” laws, which criminalize expressions deemed to offend the honor of public officials and institutions, directly contravene international human rights norms.[13] The Inter-American and European human rights systems both consider contempt and insult laws incompatible with the free debate essential to democratic society. In a landmark 1995 report, the Inter-American Commission on Human Rights (IACHR) concluded that these laws are incompatible with article 13 of the American Convention on Human Rights, which protects the right to freedom of thought and expression. The commission noted that “the fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments.”[14] 

Similarly the European Court of Human Rights has stressed that the protection of freedom of expression must extend not only to information or ideas that are widely accepted, but also to those that “offend, shock or disturb.” As the European Court noted in a case involving a politician accused of insulting the government of Spain, “Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.”[15] In a joint declaration, the special rapporteurs on freedom of expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States recommended in 2000 that "laws which provide special protection for public figures, such as desacato laws, should be repealed."[16]

Insubordination

The Cuban Criminal Code outlaws a range of forms of insubordination to authorities, including “disobedience,” “resistance,” and “attacks” on government officials. Someone who “disobeys the decisions of the authorities or public functionaries”—an act of desobedencia—may be punished with imprisonment of three months to one year.[17] An individual who “resists an authority, public functionary, or his agents or auxiliaries in the exercise of his functions”—an act of resistencia—may be punished with imprisonment of three months to one year. If the resistance occurs while the authority is carrying out an arrest, the prison sentence may rise to five years.[18] And an individual who “employs violence or intimidation against an authority, public functionary or his agents and auxiliaries”—an act of atentado—may incur a sanction of one to eight years, depending on the nature of the attack.[19] 

The UN Committee against Torture raised concern about these “nebulous offences, namely ‘disrespect’, ‘resisting authority’ and ‘enemy propaganda’,” in a 1998 report on Cuba, noting that such laws posed a risk “because of the uncertainty of their constituent elements and the room they provide for misuse and abuse.”[20]

It is appropriate to criminalize physical attacks on officials and there are limited circumstances in which even acts of disobedience and resistance to officials may be properly outlawed, as with suspects resisting arrest. But, as a number of cases documented here illustrate, Cuba uses these overly broad provisions to punish individuals who engage in peaceful activities, including forming independent unions and attending unsanctioned meetings.

Collaboration with the United States

The Law for the Protection of Cuban National Independence and the Economy[21] (Ley de Protección de la Independencia Nacional y la Economía de Cuba, hereafter the National Protection Law), which took effect in March 1999, creates harsh penalties for actions that could be interpreted as supporting or collaborating with the objectives of the US Helms-Burton Act.

Helms-Burton, which became US law in March 1996, tightened the US economic embargo on Cuba and set out a plan to assist Cuba once it began a transition to democracy.[22] In response, Cuban authorities passed the National Protection Law, which prohibits:

those actions designed to support, facilitate, or collaborate with the objectives of the “Helms-Burton” Law, the blockade, and the economic war against our people, leading toward the destruction of internal order, the destabilization of the country and the liquidation of the socialist state and the independence of Cuba.[23]

The National Protection Law is often used in conjunction with article 91 of the Cuban Criminal Code (hereafter article 91), which punishes any act made “for the purpose of undermining the independence of the Cuban state or the integrity of its territory” with ten to twenty years in prison or the death penalty.[24]

While the preamble to the National Protection Law provides that it will not infringe upon the “fundamental guarantees” afforded by the Cuban constitution,[25] most of the specific provisions of the law target dissemination of opinions or exchanges of information—activities that should be protected rather than penalized. The law’s overly broad definition of proscribed activities grants officials extraordinary authority to punish government opponents for exercising dissent.

For example, the law criminalizes the accumulation, reproduction, or distribution of “material with a subversive character” with three to eight years of imprisonment.[26] Cubans risk two to five years in prison for ”collaborating in any way with radio or television stations ... or other foreign media” deemed to be advancing Helms-Burton and related objectives.[27]

The law also creates seven- to twenty-year penalties for persons who commit “any act designed to impede or prejudice the economic relations of the Cuban state or the economic relations of any industrial, commercial, or financial institution or any other type of institution.” Those whose actions influence the US government to take measures against foreign investors in Cuba face the longest sanctions under this provision.[28]

Association

Although Cuban law guarantees the rights of association and assembly, it also empowers the state to deny these rights to groups that are critical of the government.[29] Cuba’s Associations Law (Ley de Asociaciones) entrusts the Justice Ministry with reviewing all aspiring associations. According to the law, the ministry must refuse legal status to groups:

• “whose activities could prove damaging to social interests”;
• “whose applications demonstrate the impossibility of attaining their proposed objectives and activities”; and
• “whose objectives or denomination is similar or identical to another registered [association],” among other qualifications.[30]

These regulations condition the right to associate upon cooperation with the “social interests” of the state and other arbitrary guidelines, effectively allowing the government to deny recognition to any group critical of its actions.

Even associations that are granted legal status are subject to constant review by the state, and may have their recognition revoked at any time. The Regulations for the Associations Law (Reglamento de la Ley de Asociaciones)empowers government officials to disband any association “whose activities become damaging to the social welfare.”[31]

The government has consistently refused to recognize associations that are critical of its policies and practices. Human Rights Watch was unable to document a single local civil society organization that expresses dissent—including alternative political parties, human rights groups, independent labor unions, journalist associations, and other groups—that has received approval from the state to operate.

Not only is recognition denied to such groups, but individuals who participate in “illicit” groups, meetings, or demonstrations without state authorization are subject to harassment, discrimination, and even criminal sanctions. According to the Criminal Code, belonging to an “illicit” association may be punished with imprisonment for three months to a year, as well as fines; while attending an unapproved meeting or demonstration may result in fines and a sentence of one to three months.[32]  

 

“Dangerousness”

The most Orwellian of all of Cuba’s laws is the “pre-criminal” offense of “dangerousness.” A law which has been in existence for some time, it allows individuals deemed “dangerous” to be imprisoned before they have committed or planned any crime, merely on the suspicion that they are likely to offend in the future.[33] Not only is the law completely arbitrary and subjective, but it is also explicitly political. Human Rights Watch opposes the unlawful use of preventative and pre-emptive detention—in particular for the purpose of social control and when it circumvents minimum procedural guarantees—irrespective of the context or the government implementing it for this reason.[34]

The Criminal Code defines “dangerousness” as “the special proclivity of a person to commit crimes, demonstrated by conduct that is observed to be in manifest contradiction with the norms of socialist morality.”[35] In other words, “dangerousness” is a pre-criminal state in which a person’s behavior suggests that he or she is of the type likely to commit a crime in the future. This behavior may manifest itself in habitual drunkenness, drug addiction, or “antisocial behavior.”[36] When “dangerousness” is applied to persons who voice dissent, it is most commonly for exhibiting “antisocial behavior.”[37]

A person engaged in “antisocial behavior” is one who:

habitually breaks the rules of social coexistence by committing acts of violence, or by other provocative acts, violates the rights of others or by his or her general behavior breaks the rules of coexistence or disturbs the order of the community or lives, like a social parasite, off the work of others or exploits or practices socially reprehensible vices.[38]

The Cuban Criminal Code states that the government may punish “antisocial behavior” through “pre-criminal measures” (medidas predelectivas), which are preventive measures applied before a crime is committed.[39]

The law assigns two types of “pre-criminal measures” for “antisocial behavior.” One is “re-education,” which is ostensibly carried out in specialized work or study centers, or in work collectives (colectivos de trabajo),[40] for a duration of one to four years.[41] The other is “orientation and control of conduct” by the National Revolutionary Police, which is applied for the same duration.[42]

The concept of “re-education” contravenes international standards protecting freedom of thought.  And as the subsequent chapters of this report show, dissidents sentenced under the “dangerousness” provision are routinely sent not to special work centers, but to regular prisons, where they are held alongside prisoners convicted of violent offenses. These individuals are effectively imprisoned for crimes that were never committed.   

All cases of “dangerousness” are to be processed “summarily,”[43] with judges determining the duration and type of punishment based on the person’s level of dangerousness.[44] Judges may modify the sentence at any time, either on their own initiative or at the suggestion of the officials responsible for “re-educating” or “orienting” the individuals sentenced.[45]

The law also states that an individual who is at risk of being charged with “dangerousness” should receive an official warning in writing, “to prevent the individual from pursuing socially dangerous or criminal activities.”[46] Such warnings are in theory designed to inform individuals why they are at risk of being charged with “dangerousness” so that they can modify their behavior. They are also supposed to offer the accused an opportunity to provide their own account of their behavior, which, according to the law, is supposed to be included in the written warning.[47]

An individual may even receive an “official warning” for having ties to people who are considered dangerous. The law states that as a result of “an individual’s ties or relations with persons who are potentially dangerous to society ... that individual may become prone to crime.”[48] By this reasoning, being connected to someone likely to commit a crime translates into a kind of “dangerousness” by proximity.

The “dangerousness” law is essentially a status law—criminalizing individuals for who they are or for a proclivity rather than for criminal acts. As such, it violates the basic principle that criminal law should target specific conduct accompanied by the requisite intent.[49]  As the Inter-American Court has ruled, “crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense.”[50] Human rights standards and the rule of law require that the law be foreseeable and predictable, obligating states to define precisely and in a foreseeable manner all criminal offences.[51] The law also undermines basic due process and fair trial rights, such as the presumption of innocence, in that it punishes individuals on the presumption that they may commit an offense.

Finally, the “dangerousness” law offends against basic human rights standards, as it seeks to criminalize lawful behavior protected by human rights law—that is, the exercise of freedom of opinion, expression, and association, and the right not to be deprived of liberty and security without due process of law.

Restricting Rights

The Cuban constitution contains a broad range of guarantees of fundamental rights. Yet it conditions those rights on conformity to the government and its socialist project.[52]

The constitution pledges "the full freedom and dignity of men, [and] the enjoyment of their rights..."[53] These include the freedom of expression and press,[54] the right to a competent tribunal and legal defense,[55] the right to assemble, protest, and associate,[56] and freedom of conscience and religion,[57] among others.

However, the constitution explicitly states that none of these rights can be exercised against the state. Article 62 states that:

None of the rights recognized for citizens may be exercised against that which is established in the Constitution and the laws, nor against the existence and the ends of the socialist state, nor against the decision of the Cuban people to construct socialism and communism.[58]

Because the constitution explicitly recognizes the Cuban Communist Party as “the superior leading force of society and the State,”[59] by extension no fundamental freedoms can be exercised if they run contrary to the Communist Party.

The constitution also deems the failure to subordinate basic freedoms to the goals of the state “punishable,” according to article 62, meaning that any judge, prosecutor, or government official who upholds such rights may him or herself be criminally sanctioned.[60] And it broadly empowers Cuban citizens to fight against anyone who opposes the state, granting them the right, “to combat in all forms, including through armed struggle, when another option is not available, against anyone who tries to overthrow the political, social, or economic order established by this Constitution.”[61]

Beyond the ideological conformity and conditionality of rights created by the provisions detailed above, several constitutional articles restrict the very rights they claim to ensure. Freedom of speech and the press, for example, exist ”in accordance with the goals of the socialist society.”[62] In its contradictory logic, the constitution claims to ensure free speech and a free press by mandating that “press, radio, television, films, and other mass media are state or social property, and may in no instance be the object of private ownership.”[63] 

While Cuba’s constitution also provides that state officials who commit abuses will face consequences and victims will receive restitution, in practice authorities do not enforce these rights. The most vigorous provision on accountability provides that:

Any person who suffers damage or injury wrongfully caused by State officials or agents, in connection with the discharge of the duties inherent in their positions, is entitled to demand and obtain the pertinent reparation or compensation in the manner stipulated by law.[64]

The constitution directs that state officials responsible for coercing statements “shall incur the penalties established by law.”[65] Another provision grants every citizen the right “to address complaints and petitions to the authorities,” and to receive a response “within a suitable period of time, according to law.”[66]

Cuba’s utter lack of judicial and prosecutorial independence ensures that when officials commit abuses, they are not held accountable by the courts and their actions are not taken into account when considering the culpability of dissidents.

Denying Judicial Protection

The Cuban judiciary is not an independent branch of government, but is subordinate to the legislative branch and ultimately to the head of state.

Although the Cuban constitution states that judges are “independent, and owe obedience solely to the law,”[67] it also explicitly establishes that courts are “subordinated hierarchically to the National Assembly and the Council of State.”[68] Furthermore, the Law of the Popular Tribunals (Ley 82 de los Tribunales Populares) states that the courts “are obligated to comply with... the instructions of a general nature originating from the Council of State.”[69] The Council of State is Cuba’s 31-member executive body, which is presided over by President Raúl Castro.

The constitution grants the National Assembly of People’s Power (hereafter, National Assembly)—Cuba’s highest legislative body—the authority to appoint and dismiss members of the Supreme Court (Tribunal Supremo Popular), the attorney general, and all deputy attorneys general.[70] These judges and prosecutors must report at least once a year to the National Assembly,[71] which retains the authority to remove them at any time.[72] Similarly, judges in Cuba’s municipal and provincial courts are appointed and are subject to dismissal by municipal and provincial assemblies.[73] Like the National Assembly, these lower assemblies are empowered to receive reports from the respective judiciaries and remove judges at any time.[74] The process by which judges are appointed and removed undermines the security of tenure, a key element of judicial independence.

The lack of judicial independence in Cuba is inextricably linked to the lack of legislative independence. In theory, the composition of the 614 member[75] National Assembly is determined by direct elections held every five years through a “free, direct, and secret” vote.[76] The constitution states that all Cuban citizens over the age of 18 have the right to be elected to the assembly.[77] But in reality, the selection of candidates is a highly controlled political process. A 1992 Electoral Law requires that the number of candidates on the ballot for the National Assembly equal the number of open positions.[78] To determine the candidates, a short list is drawn up by a national commission made up of representatives from all of the major official mass organizations, such as the Cuban Workers Federation. That short list is then passed along to another state-run commission, which selects a single candidate for each position.[79] As a result, the only way for voters to register dissent is to write in candidates or leave ballots blank.

Real power in the Cuban government is vested not in the National Assembly, but in the Council of State, which the constitution calls “supreme representation of the Cuban State.”[80] The 31-member council carries out all legislative functions when the assembly is not in session, which is most of the year.[81] Though by law the National Assembly elects the Council of State and may override its decrees,[82] in practice it is the council that controls the composition and agenda of the National Assembly, and by extension Cuba’s judiciary. The council can appoint ministers and other high level officials, issue decrees with the force of law, declare war, and ratify treaties, among other powers.[83]

The Council of State is headed by a president, who is also the president of the Council of Ministers, Cuba’s main executive body. It is a staggering and disproportionate concentration of power in a single position: this head of state essentially wields power over the executive, legislative, and judicial branches of government.

Judicial independence is further weakened by the involvement of lay judges (jueces legos) in proceedings, who serve alongside professional judges on both the municipal and provincial courts. In these courts, lay judges occupy two of the three seats on the judges’ panel—a majority.[84] Lay judges lack the formal legal training of professional judges and are elected by local assemblies whose composition is completely controlled by the Cuban Communist Party.[85] The law states that these judges must “maintain a good attitude before the work or the activity of social interest which they carry out,” and that they “possess ... good moral conditions and enjoy high standing in public opinion,”[86] qualifications which in the Cuban context are used to ensure ideological allegiance, and which call into question judges’ impartiality.[87]   

The Inter-American Commission on Human Rights has emphasized the essential link between judicial independence and democratic rule of law:

The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law. Judiciaries are established to ensure compliance with laws; they are clearly the fundamental organs for preventing the abuse of power and protecting human rights. To fulfill this function, they must be independent and impartial.[88]

In addition to the Inter-American Charter, other human rights treaties—including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights—require states to protect the independence and impartiality of the judiciary.[89] The United Nations Human Rights Committee, the body that monitors the implementation of the ICCPR, has ruled that for a tribunal to be “independent and impartial,”[90] the executive must not be able to control or direct the judiciary,[91] judges “must not harbor preconceptions about the matter put before them, and ... must not act in ways that promote the interests of one of the parties.”[92]

The practical safeguards that this obligation entails are set forth in a series of “basic principles” on the independence of the judiciary endorsed by the United Nations General Assembly. These principles include:

• The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.
• Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law.
• The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law.[93]

As this chapter demonstrates, Cuba has flouted all of these principles, severely undermining the rights of its citizens. 

Denying External Protections

Cuba is almost entirely closed to human rights monitoring. It is the only country in the hemisphere that does not allow the International Committee of the Red Cross access to its prisons. International human rights organizations, including Human Rights Watch, are prohibited from carrying out human rights fact-finding missions. Cuba refused to engage in dialogue or allow a visit from the Personal Representative of the UN High Commissioner for Human Rights, Christine Chanet, during her mandate from 2002 to 2007.[94]

In several instances Cuba has failed to fulfill its reporting requirements with the treaty bodies of international human rights treaties it has ratified. It has not submitted reports to the Committee on the Rights of the Child since 1995; to the Committee on the Elimination of Racial Discrimination since 1997; and to Committee against Torture since 1996. It has also not responded to requests for visits by the UN Special Rapporteur on the right to freedom of opinion and expression and the UN Special Rapporteur on freedom of religion, in 2003 and 2006 respectively. It received a visit from the UN Special Rapporteurs on the right to food (in 2007) and violence against women (in 1999); and an invitation has been issued to the UN Special Rapporteur on torture.[95]

Cuba has an obligation to respect, protect, and fulfill the rights guaranteed under customary international law and numerous international treaties it has ratified. It also has an obligation to refrain from acts which would defeat the object and purpose of treaties, or take regressive measures with respect to rights protected by them, which it has signed pending ratification.

The core provisions of Universal Declaration of Human Rights (UDHR) are broadly recognized as customary international law and an authoritative interpretation of the human rights provisions in the UN Charter. Cuba has repeatedly stated that its domestic laws respect the rights contained in the UDHR.[96]

In addition, Cuba has ratified several key international human rights treaties, which impose on it the obligation to comply with the treaties’ provisions and incorporate their protections into domestic legislation.[97] Cuba signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in February 2008. As a result, according to the Vienna Convention on the Law of Treaties, Cuba is obliged to refrain from acts that would defeat the object and purpose of the two covenants until they come into force.[98]The Cuban government has also publicly asserted its compliance with the provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners.[99] 

Despite Cuba’s ratification or signing of key treaties, and its stated willingness to abide by international standards including those set out in the UDHR, Cuban laws, institutions, and practices continue to directly contravene the human rights of the Cuban people.