[15 November 1996]
I. GENERAL INFORMATION
current legislation of the Republic of Cuba observes and respects
the rights of the individual. It embodies not only the basic, universally
recognized legal guarantees pertaining to the protection of human
rights, but also material guarantees for the actual and effective
exercise of all rights, whether civil and political or economic,
social and cultural.
2. In both
its domestic and foreign policy, Cuba puts into practice respect
for the physical and moral integrity of the individual and, in particular,
for the defence of the legitimate interests of citizens. This enables
us to affirm that there are no cases of torture, disappearances
or other serious violations of human rights in Cuba.
Cuban revolution, born of the struggle against crime and injustice
of all kinds, developed from its earliest days, and even before
its triumph, a humanistic practice of respect for prisoners and
rejection of crime, torture and any other flagrant violation of
human rights. This revolutionary ethic lies at the very heart of
the conduct of the Cuban socialist State.
4. As from
1 January 1959, with the triumph of the people's revolution, the
repressive organs of the time were eliminated and repudiated for
their crimes against, and humiliation of, citizens; and soldiers
and members of paramilitary groups who had participated in murder,
torture and other human rights violations were put on trial. A new
police force was created in the service of the people, with a strong
humanist ethic, and a new penitentiary system was established emphasizing
the rehabilitation of the human being and containing legal guarantees
to protect individuals from any illegal or inhuman practice.
protection is embodied in the Constitution proclaimed on 24 February
1976. It reaffirms the profound desire of our national hero José
Martí, who in the nineteenth century said: "I want the first law
of our Republic to be the homage of Cubans to the full dignity of
is not characterized as an offence in national legislation. However,
given the definition of torture contained in article 1 of the Convention,
any act of torture is prohibited and punishable under Cuban law,
it being considered incompatible with the principles and foundations
of the general legal framework in force in our country.
9 of the Constitution stipulates:
"The State (a) carries
out the will of the working people and (...) guarantees the
liberty and full dignity of man, the enjoyment of his rights,
the exercise and fulfilment of his duties, and the complete
development of his personality".
article 10, "All State organs and their leaders, officials and employees
act within the limits of their respective areas of competence and
have the obligation strictly to observe socialist legality and ensure
that it is respected in society as a whole".
9. In accordance
with article 42, "Discrimination on grounds of race, skin colour,
sex, national origin or religious belief or any other discrimination
detrimental to human dignity" is prohibited and punishable by law.
58 of the Constitution proclaims that "the freedom and inviolability
of persons are guaranteed to all who live in the national territory
... . The physical integrity of detainees and prisoners is inviolable".
to article 59, only the competent courts may try and convict persons
who have committed offences under prior laws; this may be done only
in accordance with the formalities and guarantees established by
those laws. Also under this article, "Every accused person has the
right of defence. No violence or coercion of any kind may be used
against people to force them to testify. Any statement obtained
in violation of this provision is null and void, and those responsible
for the violation shall be punished in accordance with the law".
The same guarantee is laid down in article 166 of the Criminal Procedure
Act (Act No. 5 of 15 August 1977).
30.8 of the Penal Code (Act No. 62 of 29 December 1987) states that
"The convicted person may not be subjected to corporal punishment,
nor is it admissible to employ against him any measure that causes
humiliation or is detrimental to his dignity".
18.4 of the Penal Code, on involvement in offences, defines perpetrators
as all those criminally responsible, irrespective of the nature
of their involvement, for crimes against humanity, human dignity
or public health, or for crimes under international treaties.
addition to being a party to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Cuba
is also a party to various other international human rights instruments,
including the following:
on the Prevention and Punishment of the Crime of Genocide (ratified
4 March 1953);
Convention on the Elimination of All Forms of Racial Discrimination
(ratified 15 February 1972);
on the Non-Applicability of Statutory Limitations to War Crimes
and Crimes against Humanity (acceded 13 September 1972);
Convention on the Suppression and Punishment of the Crime of Apartheid
(acceded 13 February 1977);
on the Elimination of All Forms of Discrimination against Women
(ratified 17 July 1980);
Convention against Apartheid in Sports (ratified 11 December 1990);
on the Rights of the Child (ratified 21 August 1991);
establishing the Fund for the Development of Indigenous Peoples
of Latin America and the Caribbean (ratified 13 December 1994);
on the Political Rights of Women (ratified 8 April 1954);
on the Nationality of Married Women (ratified 5 December 1957);
on Consent to Marriage, Minimum Age for Marriage and Registration
of Marriage (ratified 20 August 1965);
Convention of 1926 (final signature 28 June 1954);
amending the Slavery Convention signed at Geneva on 25 September
1926 (final signature 28 June 1954);
Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery (ratified 21 August 1963);
for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others (acceded 4 September 1954).
domestic legislation contains provisions for a broader sphere of
application than that provided for in the Convention, with regard
to the full protection of the individual covering all his rights.
various laws comprising substantive domestic law have been categorized
in an organizational structure based on the Constitution and the
principles contained therein.
respect to national implementation of the provisions of international
instruments, once the State Council has ratified the instrument
in question or decided to accede to it, the instrument acquires
full legal effect in the domestic legal system, in keeping with
the international commitment undertaken. In addition, article 20
of the Civil Code stipulates: "If an international agreement or
treaty to which Cuba is a party contains provisions different from
those contained in the corresponding articles of the preliminary
provisions of the Code or provisions which are not contained therein,
the provisions of the said agreement or treaty shall apply."
indicated in paragraph 8 above, in conformity with article 10 of
the Cuban Constitution, all State organs and their leaders, officials
and employees act within the limits of their respective areas of
competence and have the obligation strictly to observe socialist
legality and to ensure that it is respected in society as a whole.
In particular, the Office of the Attorney-General of the Republic,
as an organizational unit subordinate only to the National People's
Assembly and the State Council, in conformity with article 127 of
the Constitution, has as its main objectives the monitoring and
preservation of legality by seeing to it that the Constitution,
laws and other legal provisions are obeyed by the State agencies,
economic and social institutions and citizens with the Constitution,
legislation and other legal provisions, and the promotion and exercise
of public criminal action on behalf of the State. By virtue of its
scope and content, all activities of the Attorney-General are consequently
focused on guaranteeing legality, with a view to protecting the
legal order and, in particular, the rights and freedoms of citizens.
109 of the Criminal Procedure Act provides that the Attorney-General,
as the official responsible for socialist legality, guarantees that
the dignity of the citizen is respected and that he is never subjected
to illegal restrictions of his rights. Thus, when the Attorney-General
learns of the existence of a human rights violation through a citizen's
report or complaint, during examination proceedings or through prosecutorial
investigations which he may by law carry out, in conformity with
article 106.3 (c) of Act No. 4 of 1977 (Judicial System Organization
Act), he has the obligation to act in accordance with the established
legal procedures, in order to restore the violated rule of law,
without prejudice to any action open to the individual concerned,
in order to reclaim in the manner and form determined by law the
actual and effective observance of the right that has been infringed.
the Attorney-General carries out inspections in order to determine
that the law is being complied with in penal establishments, ensuring
that the rights of convicted prisoners, persons held in custody
and accused persons held in pre-trial detention are observed in
accordance with the laws and other legal provisions and their physical
addition, within the organizational structure of the Office of the
Attorney-General there is a Citizens' Rights Department, mandated
to process and reply to complaints and claims relating to alleged
violations of the law.
3 of Act No. 70 of 12 July 1990 (People's Courts Act) provides that,
in conformity with article 120 of the Constitution, "the function
of administering justice emanates from the people and is exercised
on its behalf by: (a) the People's Supreme Court; (b) the People's
Provincial Courts; (c) the People's Municipal Courts; (d) the military
courts". Article 4 goes on to state that "the main objectives of
the courts' activities are (a) to maintain and strengthen the socialist
legality; ... (c) to protect the life, freedom, dignity, honour,
property, family relations and other legitimate rights and interests
of citizens; ... (e) to prevent violations of the law and antisocial
conduct, punish and rehabilitate the perpetrators of such violations,
and re-establish the authority of legal provisions when they have
6 goes on to state: "the courts shall notify the Attorney-General
of any offences that may come to their attention during the processing
or consideration of judicial acts and trials, so that the Attorney-General
may proceed to restore legality, informing the courts of the outcome
of his acts".
Act further stipulates that the judicial function in Cuba has a
higher rank than administrative activity, and Chapter XIII of the
Constitution states that "the judgements and other enforceable decisions
of the courts, pronounced within the limits of their jurisdiction,
are binding on the State agencies, the economic and social institutions
and citizens, on those directly affected by them and on those who
have no direct interest in their implementation but have an obligation
to participate in it". This principle of legality is reiterated
in the above-mentioned Act No. 70.
Cuba, the observance and implementation of the basic principle of
respect for the physical and moral integrity of the individual and,
in particular, the defence of the legitimate interests of citizens
mean that there are no cases of persons who have been tortured or
disappeared and no other grave and systematic violations of human
rights. The protection of all members of the human family against
torture and other cruel, inhuman or degrading treatment or punishment
is embodied in the legislation in force.
such an act occur, it would, in conformity with Cuban criminal law,
constitute a serious offence which, when tried by the competent
courts, could result in the perpetrators being sentenced to severe
conformity with article 109 of the Criminal Procedure Act, in addition
to ensuring the investigation of punishable acts, the Attorney-General
is responsible for determining the objective truth and bringing
the perpetrators to justice and ensures respect for the procedural
guarantees of the accused, protection of the rights of the victims
of the offence, and the interests of the State and society.
II. INFORMATION IN RELATION TO EACH OF THE
ARTICLES IN PART I OF THE CONVENTION
Cuba today, torture is inadmissible and indeed alien to the very
nature of the Cuban social system. There is no provision for the
possibility of the use of torture under any circumstances, however
exceptional. In accordance with this principle the State has made
a deep commitment to its people, on the basis of which it has taken
and is taking effective measures for the prevention of acts of torture
and other cruel, inhuman or degrading treatment or punishment, as
stipulated in article 2 of the Convention against Torture.
Cuban Constitution stipulates the following:
The liberty and inviolability of the person are guaranteed to
everyone residing in the country.
Nobody may be arrested
except in the manner, with the guarantees and in the cases indicated
The physical integrity
of detainees and prisoners is inviolable.
Nobody may be tried or convicted except by the competent court
by virtue of laws which existed prior to the crime and with
the formalities and guarantees that the laws establish.
accused person has the right of defence.
No violence or coercion
of any kind may be used against people to force them to testify.
Any statement obtained
in violation of this provision is null and void, and those responsible
for the violation shall be punished in accordance with the law."
addition, article 30.8 of the Penal Code, which establishes the
penalties to be imposed by the courts, states: "The convicted person
may not be subjected to corporal punishment, nor is it admissible
to employ against him any measure causing humiliation or detrimental
to his dignity".
an essentially preventive measure to avoid non-compliance with the
law, article 127 of the Constitution stipulates that the main objectives
of the Office of the Attorney-General are to monitor and preserve
legality by seeing to it that the Constitution, laws and other legal
provisions are obeyed by the State agencies, economic and social
institutions and citizens.
of the principles of Cuban criminal procedure is established in
article 3 of the Criminal Procedure Act, which states: "Every offence
shall be proven independently of the testimony of the accused, or
his or her spouse or relatives". This means that a statement by
any of the above-mentioned persons does not by itself remove the
obligation to furnish the evidence necessary to prove the facts
to the authorities mandated by law to participate in criminal proceedings.
bodies, agencies, organizations and other entities, including economic
entities of any kind, have an unavoidable duty to submit to the
courts, prosecutors, examining magistrates or the police any reports,
information or background material the latter may require in order
to investigate an offence, within a time-limit of not more than
20 working days after the file is received, extendable only under
exceptional conditions. If the request is not complied with, the
above-mentioned authorities will contact the heads of the institutions
in question in order that they may take appropriate measures, irrespective
of any responsibility incurred.
rules and procedures governing the work of the judicial investigation
bodies establish the principles for dealing with detained persons
and their rights, which are in keeping with the provisions of articles
58 and 59 of the Constitution, article 166 of the Criminal Procedure
Act and article 30.8 of the Penal Code. The legislation provides
for the taking of statements, but article 161 of the Criminal Procedure
Act grants the accused the right to make a statement or to refrain
from doing so.
provisions for dealing with detainees and ensuring respect for their
rights stipulate that interviews of detainees shall be conducted
in strict compliance with the constitutional guarantees prohibiting
the use of violence or coercion to force a detainee to make a statement
and that persuasion and encouragement shall be used at all times.
obtained through violence are considered null and void and offenders
are punished. Detainees are guaranteed medical assistance and medication
if required and for as long as prescribed, and decent conditions
may be of interest to learn that, elaborating on the foregoing,
article 4 of the Code of Ethics for members of the National Revolutionary
Police, of 1 June 1985, stipulates:
activities of members of the National Revolutionary Police,
regardless of their field or rank, shall be conducted in accordance
with the following principles:
Act at all times with respect for human dignity and the rights
of every citizen.
Perform the duties required of them by law at all times, by
serving society and protecting all persons against illegal acts,
in keeping with the high degree of responsibility required by
Be aware of, respect and protect the rights of all citizens:
police authority shall be exercised with firmness, respect and
7 of the Code stipulates: "Members of the National Revolutionary
Police may in no circumstances perform, instigate or tolerate any
act of torture (physical or mental) or other cruel, inhuman or degrading
treatment, even in compliance with an order from a superior officer".
Disciplinary Regulations of the Ministry of the Interior, dated
31 January 1989, also help to ensure compliance with these guarantees.
Article 7 stipulates that members shall:
"(h) Guarantee scrupulous
respect and courtesy in relations with the public;
"(i) Observe proper
behaviour within and outside their unit, not commit or allow
others to commit in their presence violations of the rules governing
social coexistence or the legislation in force, and in all circumstances
help defend the honour, dignity and rights of all Cubans;
"(j) At all times,
especially while on duty, display loyalty, conscientiousness,
diligence, honesty and sensitivity".
2 of the Cuban Prison System Rules, dated 20 October 1992, stipulates:
"The penalties and other measures referred to in these Rules shall
be carried out with respect for socialist legality; any type of
measure that may cause physical or psychological suffering or humiliation
no circumstances, however exceptional (war or public emergency),
may the orders of a superior officer or public authority be used
to justify torture or other cruel, inhuman or degrading treatment
or punishment in Cuba. The National Defence Act does not, even indirectly,
authorize torture or other cruel, inhuman or degrading treatment
in any circumstances, including emergency situations.
this connection, article 25 of the Penal Code defines due obedience
as follows: "Obedience that is required of the agent by law, provided
that the person ordering the act is empowered to do so and the performance
of the act is among the obligations of the person who has performed
13.1 of the Military Offences Act establishes penalties for any
member of the armed forces who oversteps his authority or fails
to perform his duties properly. Articles 42, paragraphs 1 and 2
and 44, paragraphs 1 and 2, establish penalties ranging from six
months' to 20 years' imprisonment or the death penalty for anyone
who ill-treats, abuses or in other ways oversteps his authority
in dealing with prisoners or the public in war situations.
should be stressed that the Cuban Government is taking the necessary
steps to prevent the acts prohibited by the Convention against Torture,
as it considers them to be an affront to human dignity and a violation
of the relevant domestic laws and international standards. There
is no room for impunity in Cuba, or for laws or regulations that
45. Cuban criminal legislation provides for so-called active extradition,
when the Cuban Government requests a foreign State to hand over
an indicted or convicted person, and passive extradition, which
occurs when a foreign State requests that an indicted or convicted
person be handed over by the Cuban Government.
legal sources for passive extradition are: international treaties
and, in their absence, Cuban legislation; for active extradition,
international treaties and, in their absence, the principle of reciprocity.
6.1 of the Penal Code stipulates that Cuban citizens may not be
extradited to another State and that foreigners shall be extradited
in conformity with international treaties or, in their absence,
a condition for the application of Cuban criminal legislation to
foreigners and non-citizens who are not resident in Cuba and commit
offences abroad, if they are in Cuba and have not been extradited,
the law stipulates that the act shall be punishable in the place
where it was committed. This requirement is waived if the act in
question is an offence against the fundamental political or economic
interests of the Republic, or an offence against humanity, human
dignity or public health, or is prosecutable under international
12, paragraph (e), of the Constitution states that Cuba repudiates
physical violence against persons residing in other countries. In
accordance with this principle, no foreign citizen will be expelled,
returned or extradited to another State when there are valid reasons
to believe that he or she will be in danger of being tortured.
50. The Cuban Penal Code establishes penalties for the offence of
causing bodily injury ranging from 3 months' to 12 years' imprisonment,
according to the seriousness of the injury and the extent to which
it endangers life, covering the possibility of blinding or mutilating
or rendering a person unfit for procreation. The Code also establishes
the offence of coercion, which is comparable to forms of physical
or psychological torture.
272 of the Penal Code stipulates:
"Anyone who causes
another person bodily injury or seriously harms his health shall
be liable to a penalty ranging from two to five years' imprisonment".
"Serious injury is
considered to be injury that places the victim's life in imminent
danger or causes deformity, disability or any other anatomical,
physiological or psychological sequelae."
273 states: "Anyone who blinds or mutilates another person or renders
him or her unfit for procreation shall be liable to a penalty of
5 to 12 years' imprisonment".
274 reads: "Anyone who causes another person bodily injury or damages
his health, even if the victim's life is not endangered and he is
not left with any of the sequelae mentioned in articles 272 and
273, and when the injury is such as to require medical treatment,
shall be liable to a penalty of three months' to one year's imprisonment
and/or a fine of 100 to 300 units".
286 establishes a penalty of six months' to two years' imprisonment
or a fine of up to 500 units for the offence of coercion or assault.
attempt to commit an offence that may constitute torture is punishable
under the Penal Code. In Chapter IV, article 12 of the Code stipulates:
"Both completed and attempted offences are punishable", and considers
an attempt to occur "if the individual has begun to commit an offence
but not completed it". The article further specifies that the penalties
for an attempt to commit an offence shall be the same as those laid
down for the offences themselves, "although the court may reduce
them by up to two thirds of their lower limit", as an attempted
act should not always carry the same punishment as a completed act.
and participants in any offence constituting torture are punished
in accordance with article 18 of the Penal Code, which states: "All
persons criminally responsible for crimes against humanity, human
dignity or public health, or offences laid down in international
treaties, are considered to be perpetrators, irrespective of their
form of involvement". Article 19 states: "The court shall set penalties
for perpetrators within the limits set for the offence committed".
Accomplices are liable to the penalty corresponding to the offence,
reduced by one third of its upper and lower limits.
an accessory penalty to be ordered at the court's discretion, article
39 provides for the prohibition of the exercise of a profession
or holding of a post or office in cases where the person committing
the act has misused his post or been negligent in fulfilling his
duties, for a period of one to five years, which may be extended
by up to two times for offences carrying a penalty of over five
aggravating circumstances laid down in article 53 of the Penal Code
include committing the offence with cruelty or extreme depravity,
with abuse of power, authority or trust or by taking advantage of
the victim's defencelessness or dependency on or subordination to
36 of the Military Offences Act includes the offence of dishonourable
conduct, and provides for criminal measures to be taken against
any member of the armed forces who commits an act which, while not
constituting torture, may constitute ill-treatment of another person.
same Act also establishes the offence of abuse of office when an
officer or other member of the armed forces repeatedly and for reasons
of personal interest performs functions that are not assigned to
him or oversteps the functions assigned to his post, causing consequences
for the activities or interests of the military institutions or
any of their members, even if this does not occur repeatedly or
result in personal benefit. For this offence he is liable to 2 to
10 years' imprisonment. During wartime or combat activities, owing
to the danger to society this offence entails, the penalties are
increased from 10 to 20 years' imprisonment, or death.
person who seriously mistreats a prisoner of war is liable to a
penalty of six months' to three years' imprisonment.
who performs acts of violence against the civilian population in
a region of military conflict is liable to 1 to 8 years' imprisonment
or, if such acts are performed repeatedly or with cruelty, 8 to
20 years' imprisonment or death.
a doctor attending a person or identifying a body detects signs
of external injury due to violence or signs that an offence has
been committed and does not report it, he may be criminally liable
to up to two years' imprisonment or a fine of up to 500 units.
territorial jurisdiction of Cuban criminal law entails its applicability
to all acts committed within State territory and to all persons
who, for whatever reason, are present within that territory, whether
they be citizens, foreign nationals or stateless persons. The territorial
validity of internal law covers types of offences corresponding
to the requirements of article 5 of the Convention.
article 4 of the Penal Code, "Cuban criminal law is applicable to
all offences committed in the national territory or on board Cuban
ships or aircraft, wherever they happen to be, with the exceptions
established by the treaties to which the Republic is a party." It
is also applicable to offences committed on board foreign ships
or aircraft in Cuban territorial waters or airspace, whether by
Cubans or by foreign nationals, except for those offences involving
only foreign crew members, unless the ship's captain or consul of
the country of which the victim is a national asks the Cuban authorities
to assist the victim.
offence is also considered to have been committed in Cuban territory
if the offenders engages within the territory in preparatory acts
or acts which trigger the offence, even though the result is produced
abroad, or vice versa.
to article 5, criminal law is also applicable to:
and stateless persons residing in Cuba who commit an offence abroad,
whether they are present in Cuba or have been extradited;
who commit an offence abroad and have been turned over to Cuba for
trial by its courts, under treaties to which the Republic is a party;
nationals and stateless persons not residing in Cuba who commit
an offence abroad, if they are present in Cuba and have not been
extradited, or if they reside in the territory of the State in which
the offence was committed or in any other State, provided that the
act is also punishable in the place where it was committed. This
latter requirement is not enforceable if the act constitutes an
offence against the fundamental -political or economic - interests
of Cuba, or against humanity, human dignity or public health, or
is prosecutable under international treaties.
criminal law provides for the detention of any person who has committed
any act that constitutes torture, as defined in the Convention.
Following detention, measures may be taken to confine the accused,
depending on the alarm caused by the offence and whether it provoked
justified, widespread condemnation and animosity in the place where
Title IV "Detention and confinement of the accused", Chapter I "Detention",
of the Criminal Procedure Act, article 242 stipulates that "anyone
A person who is
attempting to commit an offence, at the time he is about to
A person caught
in flagrante delicto;
A person who, by
fleeing, violates the imprisonment or pre-trial security measure
to which he is being subjected;
An accused person
sentenced in absentia".
243 of the same Act stipulates that the police are under the obligation
found in one of the above-mentioned situations, who has fled while
in detention or pre-trial custody or in respect of whom an arrest
warrant has been issued;
accused of an offence against State security;
accused of an offence for which the penalty exceeds six years' imprisonment;
accused of committing an offence that has caused alarm, i.e. of
the kind which is frequently committed in cities, or about whom
there is good reason to believe that he will try to evade justice.
arrest, custodial or non-custodial precautionary measures may be
taken, in accordance with the relevant Cuban laws.
stipulated in article 249 of the Criminal Procedure Act, once any
of the precautionary measures provided for by law has been ordered,
the accused becomes a party to the criminal proceedings and his
counsel may communicate with him in due privacy, examine the contents
of the preliminary case file, furnish evidence, submit documents
on behalf of his client and request the withdrawal or modification
of the precautionary measure.
examination of the preliminary case file may not exceed 60 days,
which may be extended by the examining magistrate's superior officers
by a period not exceeding 180 days. In exceptional cases the Attorney-General
may grant a further extension in order to conclude examination of
the case file.
is a party to the Vienna Convention on Consular Relations of 24
April 1963, by which, and in compliance with national legislation,
it promptly informs the appropriate consular office of the detention
or pre-trial custody of any national of the State represented by
competent authorities provide all facilities to enable foreign nationals
detained for having committed an offence to communicate with their
detention, circumstances and outcome of criminal proceedings brought
against a foreign national are communicated by the authorities to
the consular representatives, who may organize his defence before
the time of its accession to the Convention, Cuba has more than
30 years' experience and the legal foundations and procedures needed
to comply with the requirements of article 6.
proceedings are brought by the prosecutor before the jurisdictional
body competent to hear the charge against the accused, once the
prosecutor considers the preliminary case file submitted by the
parties to be complete; he then formulates the appropriate preliminary
arguments and makes the detainee available to the court.
the court considers that the pre-trial proceedings are complete,
it opens the oral proceedings, assuming the indictment has been
made, and orders the accused persons to appear with a copy of the
evidence submitted, so that they may appoint attorneys for their
defence if they have not yet done so; if this is not done within
five working days, an attorney is appointed for them by the court.
for the defence receives the record of the pre-trial proceedings
so that he may prepare his preliminary arguments in response to
those of the prosecutor.
conformity with Cuban law, the standard of evidence required for
prosecution or indictment is equally rigorous for any of the cases
covered by article 5 of the Convention.
Cuban criminal procedure, every accused person is entitled in complete
equality to the following guarantees:
be notified promptly of the nature and reasons for the charge against
him, under article 244 of the Criminal Procedure Act;
be given the necessary time and means to prepare his defence, to
appoint a defence attorney of his own choosing and to communicate
with that attorney, in accordance with articles 244 and 281 of this
be tried without undue delay, without prejudice to his right to
claim compensation for damage and injury, and other responsibilities
arising under article 31 of the Act;
request the immediate taking of evidence which, for whatever reason,
he fears cannot be given in a public hearing, in accordance with
articles 249 and 250 of the Act;
be convicted at a public hearing for acts covered by the indictment;
in other words, the principle of proportionality between the charge
and the sentence must be observed, in accordance with articles 350
and 357 of the Act;
appeal against convictions, so that they may be reviewed by a higher
34 in Chapter III, ("Status of foreigners") of the Constitution
provides that foreign nationals residing in Cuban territory are
deemed to be comparable with Cuban citizens as regards the obligation
to respect the Constitution and the law and to submit to the jurisdiction
and decisions of the Cuban courts of justice and authorities.
proceedings are public in Cuba unless, for reasons of State security,
morals or public order or out of respect for the person injured
by the offence or his family members, it is advisable for them to
be held in camera. During the oral proceedings, the accused may,
if he so wishes, state whatever he considers necessary in relation
to the acts with which he is charged, and may refrain from replying
to any questions asked of him.
accused must be present at all times during the presentation of
evidence at the trial; when for whatever reason he cannot be present,
he must be represented by his attorney.
the presentation of evidence is completed and the final arguments
have been made by the parties, they must make their oral pleas;
once they have been completed, the accused will exercise his right
to have the last word if he wishes to add anything to his defence.
Cuban courts, through the Legal Office of the Ministry of Foreign
Affairs, must inform accredited embassies of any nationals standing
trial in those courts, and of the date of the oral proceedings,
which is also in conformity with article 36 of the Vienna Convention
on Consular Relations. They will also apprise the Cuban Immigration
and Status of Foreigners Office of any sentences handed down against
foreign nationals and stateless persons involved in criminal proceedings.
accordance with article 6.1 of the Cuban Penal Code, Cuban citizens
may not be extradited; article 6.2 states that the extradition of
foreign nationals is to be carried out in conformity with international
treaties or, in their absence, Cuban law, which does not exclude
the possibility of the foreign nationals being tried by Cuban courts
in conformity with the comments on articles 4 and 5 of the Convention.
regard to the offences referred to in article 4 of the Convention,
Cuba provides the legal assistance requested in accordance with
the international treaties to which it is a party or, in their absence,
nationals sentenced to imprisonment by Cuban courts may be turned
over to the States of which they are nationals to serve their sentences
in the cases and in the manner prescribed by the treaties. Similarly,
Cuban nationals sentenced to imprisonment by foreign courts may
serve their sentences in Cuba, also under the terms of the relevant
treaties. The Cuban court considered competent to hear the case
at first instance will be competent to hand down the verdict and
determine the length of the sentence, which will for all purposes
be considered equivalent to the sentence at first instance.
Cuban judicial practice, civil proceedings determine how enforceable
sentences handed down by foreign courts will be executed in cases
where no treaties exist; such sentences are served as if they were
they were handed down in consequence of bringing an action;
they were not handed down in the absence of the accused;
they relate to acts accorded comparable legal status under Cuban
the document containing the sentence appears to have been issued
in accordance with the conditions required for its authenticity
in the country concerned, and if the legal requirements for their
certification in Cuba have been observed;
the sentence is accompanied by a communication from the Ministry
of Foreign Affairs of the country in which it was handed down, stating
that the authorities of that country will carry out sentences pronounced
in Cuba, on the basis of reciprocity;
the convicted person's Cuban domicile, should he have one, is clearly
execution of foreign sentences is requested of the Supreme Court
of the Republic unless, under an international treaty, that task
comes under the competence of another court.
the training of Cuba's law enforcement personnel, the ethical principle
of respect for life and physical integrity has been foremost. In
addition to the legal obligations, these personnel have duties corresponding
to their conscientiousness and responsibility, which includes the
strictest discipline and the obligation to account to their superior
officers, colleagues and those who, on behalf of the Cuban people,
selected them to discharge that responsibility.
students are given appropriate training on the scope and content
of conduct that may be characterized as criminal.
the State security and internal security agencies, officers in charge
of the treatment of detainees, accused persons and convicted prisoners
receive training in which they are told that any mistreatment, by
word or deed, is considered a sign of powerlessness, uncouthness
or technical or professional incompetence. These officers are required
to observe the Code of Ethics and Disciplinary Rules, which explicitly
include the prohibitions referred to in article 2 of the Convention.
of penal establishments, and examining bodies receive suitable instruction
as part of their professional training on the scope and content
of criminal conduct that may be categorized as constituting an act
of torture or other cruel, inhuman or degrading treatment.
their training courses, these officials are also taught the standards
and rules set forth in the main international conventions and covenants,
as appropriate, such as the Universal Declaration of Human Rights,
the Standard Minimum Rules for the Treatment of Prisoners, the Code
of Conduct for Law Enforcement Officials, the International Covenant
on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, the Convention against Torture, the
United Nations Declaration on the Elimination of All Forms of Racial
Discrimination, and the Convention on the Prevention and Punishment
of the Crime of Genocide.
Cuba, doctors and health care personnel in general are taught the
principle of providing protection for physical and mental health,
regardless of the characteristics of the patient. Thus, all persons
in prison or detention receive medical assistance when they need
it, on the same terms as other persons.
Cuban legislation, government procurators are required to ensure
compliance with socialist legality in the treatment of detainees
by examining bodies, while government procurators and magistrates
carry out the same task in penal establishments.
organizational structure of the Office of the Attorney-General includes
a department for the supervision of legality in penal establishments.
This department, inter alia, contributes effectively to constant
review of the provisions for the custody and treatment of detainees
and prisoners in all parts of Cuba.
5 of the Prison Regulations stipulates that, in accordance with
existing legislation, magistrates and government procurators must
be permitted access to penal establishments and other places of
detention to monitor the implementation of the penalties and pre-trial
detention measures imposed by the courts, and thus contribute to
the achievement of their purposes.
order to ensure that the law is complied with, the chief officials
of towns, provinces and the State security and internal security
agencies constantly monitor on a daily basis the bodies and officials
responsible for the custody and treatment of persons undergoing
any form of arrest, detention or imprisonment and for ensuring compliance
with the provisions covering interviewing methods and practices.
This enables inadequacies and errors in the application of the relevant
legislation to be detected in time and appropriate steps to be taken
to remedy them.
accordance with article 116 of the Criminal Procedure Act, any person
who witnesses the perpetration of an officially prosecutable offence,
or is certain that such an offence has been committed, is required
to bring it to the attention of the nearest court, prosecutor, examining
magistrate, police unit or military unit. Persons who, through their
responsibilities, profession or occupation, have information that
an offence has been committed are required to do the same. The article
further provides that if a State official or employee should fail
to perform this obligation, his superior officer will be informed
in order that appropriate administrative or employment-related action
may be taken.
article 119 of the same Act, if the police are informed that an
offence has been committed, they may arrest the suspect, take the
requisite precautionary measure (this may not, however, take the
formal pre-trial detention, which is only ordered as provided by
law) and immediately initiate the essential formalities.
Criminal Procedure Act lays down strict rules for carrying out investigations
of offences and bringing their perpetrators before the competent
courts, which ensure the necessary rapidity in the investigations
and give equal rights to all persons involved in the criminal proceedings.
is established practice in the State security and internal security
agencies in Cuba that, when evidence of irregular behaviour exists,
the appropriate department requires the staff to produce a detailed
report of the events and immediately carries out the pertinent investigations
pending a possible legal or administrative response.
the country, the right of citizens to submit complaints and petitions
to the authorities and to be receive a response or attention within
a reasonable time in accordance with the law is protected by the
Constitution. Citizens also have the right of an effective appeal
to the competent courts and of a public hearing on an equal footing
before an independent and impartial court.
cases where the acting authorities decide not to initiate criminal
proceedings and request the competent court to order a general or
partial dismissal of proceedings, criminal law allows the victim
of the offence to bring a private action, whereupon the case enters
the oral proceedings stage and is settled by the court.
the act which has given rise to the complaint constitutes an offence,
the person concerned may lay an information with the competent authorities,
as provided for in article 116 of the Criminal Procedure Act, and
the police will immediately proceed to take action in accordance
with article 119 of the Act.
the complaint concerns an enforceable judgement or dismissal of
proceedings by the courts, the person concerned may request the
Minister of Justice, the President of the Supreme Court and the
Attorney-General of the Republic for a review, in accordance with
article 455 of the Criminal Procedure Act, provided that he complies
with the requirements of the law.
Cuban courts also deal with claims by citizens relating to their
work; the People's Supreme Court has a department for collaboration,
publicity and legal information which, under article 26 (b) of Act
No. 70 of 1990, performs this very sensitive task. Article 53 of
the Criminal Procedure Act stipulates that the remedy of complaint
may be exercised against decisions by the examining magistrate or
procurator which may cause irreparable damage.
Penal Code protects individuals and their relatives who have contributed,
as witnesses or in any other way, to enforcing or applying laws
or general provisions; and in article 142.2, it establishes penalties
for those who employ violence or intimidation against them.
3 of the same article adds that a similar penalty is incurred when
the violence or intimidation is used as vengeance or reprisal against
the relatives of the above-mentioned persons and in the circumstances
similar assurance is provided for prisoners. Article 63 (o) of the
Prison Regulations stipulates that any person held in detention
has the right to "submit verbal or written complaints to the authorities
through the appropriate channels and to receive a reply from them".
Paragraph (k) of the same article recognizes the right of prisoners
to "initiate legal formalities through a lawyer or the head of the
penal establishment or place of detention".
the Ministry of the Interior there is a procedure requiring senior
officials and their auxiliary staff to organize and implement the
handling of complaints, claims, requests and suggestions by individual
citizens, who should be seen by them and given due attention. This
procedure covers any accusation against the police or a public official
relating to treatment condemned by the Convention in articles 1
internal regulations of the Ministry of the Interior lay down the
general guidelines for the work of its departments in receiving
and dealing with complaints by the public. They state that:
"All claims and applications
by citizens shall be treated with due attention and respect;
they shall always be processed without exception, whether they
are complaints, accusations or reports, requests or suggestions.
"Similarly, all claims
shall be checked; it shall be a rule that they are processed
and given a reply within the prescribed time limit. In all cases,
impartiality and justice shall prevail in the handling of complaints,
requests and suggestions, over and above the specific interests
of individuals or departments.
or misconduct on the part of our police are established, appropriate
legal, disciplinary or administrative measures shall be taken;
their timely and effective application shall be the responsibility
of department chiefs, for which purpose effective monitoring
mechanisms shall be established.
"Citizens shall be
given a personal response; a written record shall be kept of
this response and whether or not it conforms to the results
reported. Should this not be the case and should there be due
grounds, the claim shall be investigated by a higher authority
than that which originally investigated it."
order to ensure greater impartiality, the Ministry of the Interior
forbids organs or individuals who are the subject of claims to be
informed of or to participate in the investigations and decisions
concerning these matters or accusations until the case is terminated.
the administrative level, the State Council issued Decree-Law No.
67, which established, as a common duty, function and responsibility
for all agencies, various tenets and organizational principles for
the public administration. These included attending to and providing
a pertinent response within 60 days to the complaints and petitions
addressed to them by citizens, endeavouring to find correct solutions
to the questions raised and taking steps to eliminate the shortcomings
Office of the Attorney-General also contains departments which deal
with citizens' rights, and handle and respond to complaints and
petitions relating to irregularities in the observance of the law,
in accordance with the functions assigned to it by article 106 of
Act No. 4 of 1977, on the monitoring of legality by ensuring strict
compliance with the law and other legal provisions.
Cuban Constitution stipulates that any person who suffers damage
or injury at the hands of State officials or agents in the exercise
of their official duties has the right to claim and obtain appropriate
redress or compensation in the form prescribed by the law.
the words of article 70.1 of the Penal Code, "Any person who is
criminally liable is also liable in civil terms for the damage and
injury caused by the offence. The court which hears the case shall
declare the person's civil liability and its extent, applying the
relevant provisions of civil law, and shall also directly enforce
the obligation to restore the material loss and redress the moral
the accused refuses to provide moral redress, the court will impose
on him an additional prison sentence of not more than six months.
71.1 of the Penal Code states: "The Compensation Fund is the body
responsible for enforcing civil liability consisting of redress
for material damage and compensation for injury".
action to claim civil liability is brought jointly with the criminal
action; it does not entail abatement of the latter in cases which
give rise to the abatement of the criminal indemnity action, and
may be brought as appropriate.
Cuban Labour Code (Act No. 49) stipulates that a worker who is subpoenaed
by the court, by the procurator's office or by the investigation
agencies or is held in custody or in pre-trial detention when the
accused is not convicted shall have the right to receive the wage
which he has forfeited without detriment to his right to seek compensation
on other accounts.
Cuban Constitution prohibits the use of violence or coercion against
individuals to force them to testify, and declares null and void
any statement obtained in breach of this provision. Persons found
guilty of such acts are liable to the penalties which criminal law
establishes for cases categorized as offences. Article 59 stipulates
that "No violence or coercion of any kind shall be used against
individuals to force them to testify".
principle is confirmed by article 166 of the Criminal Procedure
Act, which stipulates: "Any statement obtained in breach of this
principle shall be null and void, without prejudice to any criminal
liability that may be incurred".
172 of the Act states: "No witness may be forced to make a statement
concerning a question if answering it may cause direct or substantial
material or moral damage to his person, honour or interests, or
to the person, honour or interests of a close relative".
accordance with Cuban legislation, no statement which is established
to have been made as a result of an act of torture may be invoked
as evidence in any proceedings, except against a person accused
of committing the act of torture as evidence that the statement
was made as a consequence of that act.
183 of the Criminal Procedure Act states that under no circumstances
may coercion, deceit, promises or subterfuge be used to force or
induce a witness to testify in a specific sense.
accordance with article 109 of the Act, the government procurator,
as the person responsible for ensuring compliance with the law,
guarantees that the citizen's dignity is respected and that under
no circumstances will he be subjected to unlawful restrictions of
312 states that in the public oral hearing before the court, a person's
right not to be required to testify on his own behalf must be reasserted;
logically, persons exempted from testifying as witnesses will not
appear before the court in that capacity.
was said earlier in the explanation of certain measures for ensuring
compliance with article 2 of the Convention, the provisions and
procedures for the work of the investigating bodies of the Ministry
of the Interior state that during the questioning process strict
compliance must be ensured with the constitutional and juridical
prohibitions of the use of violence or coercion to force a detainee
to testify, while officials are reminded that statements obtained
by violent methods are considered to be null and void and that offenders
will be punished.
criminal law makes provision for offences or unlawful forms of behaviour
related to compliance with the first paragraph of this article,
execution of penalties or security measures (art. 141);
of children, or disabled persons or destitute persons (arts. 275
of deprivation of liberty (art. 279);
search (art. 288);
against the rights of assembly, demonstration, association, complaint
or petition (art. 292);
against the right of equality (art. 295);
imposition of disciplinary measures (art. 297).
other articles already considered make it possible to punish acts
or forms of behaviour relating to actions which, without actually
constituting torture, may represent ill-treatment by public officials
or other persons acting in an official capacity.
accordance with the Penal Code, Chapter I, "Violation of the duties
inherent in public office", Title II, "Offences against the administration
and the courts", Book II, "Special section", penalties are imposed
on a public official who, in attempting to cause prejudice to a
person or obtain unlawful benefit, uses his position in a manner
manifestly contrary to the law or arbitrarily exceeds his lawful
powers (offence of abuse of authority).
reference to the precautionary measure of pre-trial detention for
which the law makes provision, the State Council agreed, on 8 March
1985, to issue instructions to the Supreme Court and the Office
of the Attorney-General with the aim of immediately standardizing
their criteria, through a general and mandatory interpretation of
the law, with a view to reducing to a minimum the number of accused
persons held in pre-trial detention. The interpretation achieved
has helped to ensure that in Cuba the so-called "unconvicted prisoners"
are not a problem because of the speed with which proceedings are
handled. Both statutory and judicial deadlines have been shortened,
and the latter are fully binding on all persons in any way involved
in the criminal proceedings.
30 of the Penal Code provides that the time spent by the prisoner
in custody and pre-trial detention is automatically deducted from
the duration of the prison sentence. In addition, the prisoner may
not be subjected to corporal punishment nor may any measure be used
against him which involves or results in loss of his dignity.
concept of holding a detainee or prisoner incommunicado is totally
alien to criminal and procedural practice in Cuba. Accused persons
have the right to be visited by their relatives and their counsel,
in accordance with the statutory regulations, while the habeas corpus
procedure is an additional guarantee.
so-called summary procedure applies only in cases where exceptional
circumstances so require. The Attorney-General may inform the President
of the People's Supreme Court, who may decide that offences coming
within the competence of any court of justice will be tried in accordance
with the summary procedure, with the exception of those which come
within the competence of the people's municipal courts. None of
the procedural guarantees already discussed may be restricted, but
the time limits may be shortened to the extent that the competent
court deems necessary.