LEGAL NORMS RELATING TO THE RIGHT TO
FREEDOM AND POLITICAL PRISONERS
A. Cuba's international obligations in the area of human rights
1. The Republic of Cuba has assumed international commitments in the area of human rights through ratification of, or adherence to, various international instruments.1 However, as of the date of approval of this report, it has neither signed nor ratified the International Covenant on Civil and Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil and Political Rights of the United Nations, nor has it signed the American Convention on Human Rights also known as the Pact of San José, Costa Rica, of 1969.
2. In the first years of the Revolution and within the context of the Organization, the Cuban Government supported the establishment of an Inter-American Commission on Human Rights. At the Fifth Meeting of Consultation of Ministers of Foreign Affairs, held in Santiago, Chile from August 12 through 19, 1959, the “Declaration of Santiago” was approved whereby the Inter-American Commission on Human Rights was established and a decision was made to draw up a convention on human rights. At that meeting, the then Cuban Minister of Foreign Affairs, Dr. Raúl Roa, said that his Government was a firm supporter of any measure adopted and any mechanism established to protect the exercise of human rights and punish their violation; that his Government concurred with the idea of establishing an Inter-American Commission on Human Rights, to go into operation as soon as possible; that he felt it essential that the peoples themselves be allowed to present denunciations of violations of human rights. He went on to state that he felt that the Inter-American Commission on Human Rights must provide for the right of individual petition, as otherwise it would be a dysfunctional Commission.2
B. Human rights under the Cuban Constitution of 1976
1. When the Revolutionary Government of Cuba assumed power on January 1, 959, the 1940 Constitution remained in force. But one month later, on February 7, 1959, the Council of Ministers, exercising their legislative powers, approved, sanctioned and enacted the “Fundamental Law of the Republic,” which replaced the 1940 Constitution. Cuba's present Constitution, which replaced the Fundamental Law of 1959, went into effect on February 24, 1976. That Constitution is the first drafted by the Revolutionary Government of Dr. Fidel Castro and is also the first Cuban Constitution based on Marxist-Leninist principles.
2. The new Constitution contains a total of 141 articles in one preamble and twelve chapters. Even though Chapter VI establishes the “Fundamental Rights, Duties and Guarantees” in Articles 45 through 65, other rights that are also fundamental are provided for in other chapters. The central characteristic of the legal system is the supremacy of the Socialist State. The Socialist State restricts the exercise of any right and any freedom at that point where the exercise of such rights or freedoms is contrary to it. This restriction is set forth explicitly in Article 61, which reads as follows:
None of the freedoms which are recognized for citizens can be exercised contrary to what is established in the Constitution and the law, or contrary to the existence and objectives of the Socialist State, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle are punishable by law.
3. The new Constitution provides that individual political rights are limited by the collective good of the socialist society; citizens have freedom of speech and of press in keeping with the objectives of socialist society (Article 52); the rights to assembly, demonstration and association are exercised by social and mass organizations (Article 53); the Socialist State recognizes and guarantees freedom of conscience and the right to everyone to profess any religious belief and to practice, within the framework of respect for the law, the belief of his preference, insofar as the enjoyment of these rights is not contrary to the Revolution, education, or the fulfillment of one's duty to work, defend the homeland with arms, show reverence for its symbols and fulfill other duties established by the Constitution (Article 54); the home, mail and communications via cable, telegraph and telephone, are inviolable except in those cases prescribed by law (Articles 55 and 56); the Republic of Cuba grants asylum to those who are persecuted because of the struggle for the democratic rights of the majority; for national liberation; against imperialism, fascism, colonialism, and neocolonialism; for the abolition of racial discrimination; for the rights of workers, peasants and students and the redress of their grievances; for their progressive political, scientific, artistic and literary activities; for socialism and peace (Article 13).
4. The individual rights upheld by the Cuban Constitution are similar to those contained in the constitutions of all countries. Freedom of inviolability of persons are assured to all those who live in the country; nobody can be arrested, except in the manner, with the guarantees and in the cases the law prescribes; the person who has been arrested or the prisoner is inviolable in his personal integrity (Article 57); no one can be tried or sentenced except by the competent tribunal by virtue of laws which existed prior to the crime and with the formalities and guarantees that the laws establish; every accused person has the right to a defense; no violence or coercion of any kind may be used against persons to compel them to testify (Article 58); penal laws may only be imposed when they benefit the accused or person who has been sentenced. Other laws are not retroactive unless the contrary is decided for reasons of social interest or because it is useful for public purposes (Article 60).
C. Cuba's penal legislation with respect to human rights
1. The present Penal Code of the Republic of Cuba went into effect on March 1, 1979, and is the product of ten years of work. This code compiles Cuba's laws of recent years and does not represent a departure from the previous penal-juridical system. This part of the report will examine those acts criminalized as counterrevolutionary offenses; the repression of which may engender violations of human rights.
2. Development of Cuba's socialist legal order through institutionalization of the organs provided for in the 1976 Constitution and in a series of relatively contemporaneous codes (1979 Penal Code, 1977 Criminal Procedure Law, 1977 Law on Organization of the Judicial System) have enabled the Cuban Government to consolidate and transcend its 20 year period of transition.
3. The new Penal Code is divided into two parts. The first book (general), and the second book (specific). The crimes are defined in the second part. They are classified under 13 headings and the most important of these is the first on Crimes against the Security of the State, previously designated “counterrevolutionary crimes.”
4. The Cuban State restricts the exercise of any right and any freedom when the exercise of that right or freedom is in opposition to the State. This principle is set forth in Article 61 of the Cuban Constitution. For example, the simple fact of writing against the Socialist State constitutes a crime against the internal security of the State:
Article 108 (Penal Code): Enemy propaganda:
1. The following shall be punishable by deprivation of freedom for a period of from one to eight years: a) incitement against the social order, international solidarity or the Socialist State, through oral, written or any other form of propaganda; b) Drafting, distribution or possession of propaganda of the kind mentioned in the preceding paragraph.
2. Spreading false news or malicious predictions designed to cause alarm or discontent among the population or public disorder shall be punishable by deprivation of freedom for a period of from one to four years.
3. If mass news media are used to execute the acts listed in the preceding paragraphs, the punishment shall be deprivation of freedom for a period of from seven to fifteen years.
4. Allowing the use of mass communications media as referred to in the preceding paragraph shall be punishable by deprivation of freedom for a period of from one to four years.
Mention should be made of the fact that the phrase enemy propaganda used as the title for this article is too broad and general and can include acts that in fact are not acts involving propaganda against the Socialist State. The result of efforts to repress such acts could be the elimination of any kind of disagreement with the socialist organization and the persecution of individuals for merely exercising their right to express themselves.
5. The Penal Code punishes “illegal” departure from the country:
Article 247 – 1. He who, without following the legal formalities, leaves or performs acts aimed at leaving the national territory, shall be deprived of his freedom for a period of six months to three years.
No State has the right to prevent an individual from leaving the country, except when that individual is accused of a common crime. However, any State has the right to regulate that departure for administrative purposes. Certain formal requirements may be demanded. However, when one fails to observe these requirements and is thereby subject to penal sanctions, these cease to be merely formal and administrative requirements and such penalties appear to be excessive.
The Inter-American Commission on Human Rights has received denunciations wherein it is alleged that the present Government of Cuba obstructs the legal proceedings and creates obstacles for persons seeking to leave the country. The Commission cannot overlook the publicly known fact that thousands of individuals are requesting permits to leave Cuba.
D. The specific problem of obligatory military service
1. Men between the ages of 15 and 27 are not allowed to leave Cuba because, under the law, they are subject to mandatory military service. It has been denounced to the Commission that although an individual may be exempted from military service because of a physical disability, for example blindness, this does not mean that he can leave the country. Someone who is disqualified for a handicap or who has completed his military service by the time he has reached the age of 18, must wait until he is 27 years old before he can leave the country legally.
The reason for this restriction lies in the politics of the Vietnam War. Originally, the Cuban Government refused to allow men under 27 years of age to emigrate because the United States would have been able to send them to Vietnam to fight against Cuba's allies.
2. To refuse to fight as a soldier is a crime punishable under the new Penal Code. Article 253 provides the following:
1. When called up by the Military Boards or the Military Bureaus of the Municipal Assemblies of the Peoples Power, anyone who fails to appear, without justifiable cause, at the place to which he was ordered by the Military Boards of Bureaus to perform his active military service, shall be subject to a punishment of deprivation of freedom for a period of from one to four years, a fine of two hundred to fifteen hundred quotas, or both.
2. The same punishment shall apply to the individual who, when called up to General Military Service, refuses during transit or when he reaches the unit or institution where he must render service, to dress in the military uniform, to bear the regulatory arms or to comply with the other procedures necessary for his incorporation into Active Military Service.
E. The death penalty
1. The 1940 Cuban Constitution, in general, proscribed the application of the death penalty for political crimes. The revolutionary Fundamental Law (Law 988 of November 29, 1961) declared the death penalty to be the only punishment applicable in cases of certain counterrevolutionary crimes. Today the Socialist Penal Code of 1979 also authorizes the death penalty, and provides the following:
The punishment of death is an exceptional form of punishment and shall be applied by the tribunal only in the most serious cases of the commission of those crimes for which it is established. The death penalty may not be imposed on those under 20 years of age or women who committed the crime when pregnant or who are pregnant when sentence is passed. The death penalty shall be implemented by firing squad.
2. The basic, underlying principle of socialists law is reeducation before repression. However, the death penalty, the most repressive of all sanctions, is still applied in Cuba in certain cases, and is applied as a form of “punishment”.
The crimes for which the death penalty may, in theory, be imposed include crimes against the security of the state, namely: crimes against national independence, against the system of migration, against the social order and international solidarity and against the powers of the state. Also considered counterrevolutionary offenses are crimes classified as international crimes by international treaties, crimes against the public order and crimes against the collective security.
Since in recent years the Commission has not received any denunciations alleging executions in Cuba, it is more concerned with the latent possibilities of this legislation than with its practice.
F. Concerning the socially harmful condition and security measures
1. The basic concept underlying socialist criminology is social defense. The Draft Penal Code defines a crime to be “a socially harmful act, executed with intent or through fault, that infringes upon social standards by attacking or placing in jeopardy property or interests protected by society.”
Not only the commission of a crime (the socially harmful act) but also the socially harmful conditions are punishable under the Code. The “pre- or postcriminal security measures” can be decreed to prevent the commission of crimes or because of their commission, respectively. A condition contrary to the standards of the socialist moral code results in the imposition of these security measures.
2. Since some of these provisions can be used to intimidate and repress those who oppose the regime, the Commission considers it to be particularly useful to examine letters f and g of Article 77:
THE SOCIAL HARMFUL CONDITION
Article 77 – A socially harmful condition is one in which the subject satisfies some of the following indices of harm:
f) Habitual vagrancy. A working-age man, physically and mentally capable of working, is considered to be in a socially harmful condition of vagrancy when without justified cause and not having attended a school of the national educational system or a professional training center run by state agencies, he refrains from any form of work and thus lives, as a social parasite, from the work performed by others;
g) Antisocial behavior. Any individual who through acts of violence, phrases, gestures, or other provocative or threatening means, or by his behavior in general, habitually violates or places in jeopardy the rules of socialist coexistence, or abuses the rights of others or frequently disrupts the order of the community, is considered to be in a socially harmful condition by virtue of antisocial behavior.3
Precriminal security measures fail into three categories: 1) therapeutic; 2) re-educational, and 3) surveillance by crime-prevention agencies. In Cuba, reeducational measures are used for individuals whose ideology is anti-Marxist; such measures are applied instead of the therapeutic measures notoriously abused to repress political dissidents in other Communist countries.
3. The reeducational measures are as follows:
a) Internment in a specialized labor establishment or in a workshop school;
b) Delivery to a work commune so that the behavior of the individual in the socially harmful condition may be monitored and oriented.
In these cases the sentence is a minimum of one year to a maximum of four (Article 84 of the Penal Code.)
4. The Commission notes with concern the existence of forced labor camps in Cuba. The Government of Cuba has ratified the ILO Convention (Nº 29) on forced labor (1930) and the ILO Convention (Nº 105) on abolition of forced labor (June 25, 1957). In accordance with Article I of the first of these conventions, each member country of the ILO, which ratifies the Convention, undertakes to suppress the use of forced or compulsory labor in all its forms, within the shortest period of time possible.4
In violation of these conventions the Cuban Government uses forced labor as a means of coercion against individuals who have certain political views, in cases of political prisoners who have already been released, who are forced to work, and as a condition for facilitating emigration in the cases of prisoners who must work on farms before being granted permission to leave. Further, the Commission has also received communications regarding 6,595 young men called up for compulsory military service who are detained in forced labor camps at Cinco y Medio and El Corojal (Pinar del Río), Guanajay, El Mamey, and Malagamba Uno, Dos y Tres (Havana) and Falla and Anoncillo (Camagüey.) In many of these cases, the imputed offense was that of not being willing to perform military service in Africa.
The Commission also has reached the conclusion that there are prisoners who have not yet been sentenced, who are being submitted to forced labor in violation of the ILO Convention mentioned earlier, as a reeducational security measure for having expressed ideological opposition to the established political, social or economic system.
5. According to Article 89 of the Penal Code, postcriminally security measures can be applied to, among others, “the individual who while serving a sentence of imprisonment, has become mentally ill” or “the repeated offender who fails to comply with any of the obligations the court has imposed upon him.”
Once the repeated offender who fails to comply with any of the obligations imposed by the court has completed his sentence, the Court can impose a security measure consisting of his internment in a rehabilitation center for an undetermined period of time, not to exceed five years. (Article 93).
Further, the Court that has passed the sentence may also:
a) order an additional security measure not imposed as part of the sentence, should the subsequent behavior of the individual found guilty so require:
b) cancel a security measure imposed if the socially harmful condition that prompted it has disappeared, or replace it with another more suitable measure;
c) order a new security measure while the one ordered is being carried out, to replace the latter or without revoking the latter, if the individual in question shows new or differing symptoms of posing a danger. (Article 91).
According to the information at the Commission's disposal, in December of 1977 the Cuban Government admitted that 26 individuals were resentenced after the expiration of their original sentences, through application of those postcriminal security measures; but, from other sources, the Commission has learned that the number is even higher. At that time, those individuals were incarcerated in the prisons of Guayo, Boniato, Combinado del Este, Aquica and Camagüey, and not in special establishments.
1 The Republic of Cuba has ratified the following instruments: Convention on the Prevention and Punishment of the Crime of Genocide (1951), ILO Convention (Nº 29) concerning Forced Labour (1930), ILO Convention (Nº 105) on the Abolition of Forced Labour (1957), ILO Convention (Nº 87) concerning Freedom of Association and Protection of the Rights to Organize (1948), ILO Convention (Nº 98) concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949), ILO Convention (Nº 100) concerning Equal Remuneration for Men and Women Workers for Word of Equal Value (1951), ILO Convention (Nº 111) concerning Discrimination in Respect of Employment and Occupation (1958), ILO Convention (Nº 122) concerning Employment Policy, the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Members of the Armed Forces in the Field (1949); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1949), Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), International Convention on the Elimination of All Forms of Racial Discrimination (1969), International Convention on the Suppression and Punishment of the Crime of Apartheid (1976), Inter-American Convention on the Granting of Political Rights of Women (1954), the Convention of the American States on the Nationality of Women (1958), Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951), the Convention of American States on Political Asylum (1933), and the Convention for the Abolition of the Slave Trade and Slavery (1926). Cuba also approved the American Declaration of the Rights and Duties of Man (1948) and, on July 16, 1952, ratified the Charter of the Organization of American States, which it has not denounced to date.
2 OEA/Ser.F/III.5, see page 228.
3 Also included are mentally disturbed or mentally retarded individuals.
4 Article I of the ILO Convention on the Abolition of Forced Labor defines the obligations of the ratifying parties as follows:
Each member of the International Labour Organization which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labor:
a) As a means of political coercion or education or as a punishment for holding or expressing political views ideologically opposed to the established political, social or economic system;
b) As a method of mobilizing and using labour for purposes of economic developments;
c) As a means of labour discipline;
d) As a punishment for having participated in strikes;
e) As a means of racial, social, national or religious discrimination.
Every ratifying Member undertakes “to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as specified in Article I of this Convention.”