The arbitrary arrest of a group of Cuban journalists on October 12 while covering the aftermath of Hurricane Matthew in Baracoa has sparked outrage.
The arrest of these journalists came just a few days after the holding of a human rights forum between the governments in Havana and Washington.
The deputy editor of the Cuban daily Granma, Oscar Sánchez Sierra, in his article entitled "Matthew: Humanism, Transparency and Manipulation" questioned the "true intentions" of independent journalists with their coverage. Without naming him, he was referring to DIARIO DE CUBA journalist Maykel González Vivero Vivero, who was detained and arbitrarily deprived of his reporting equipment. He was also alluding to journalist, blogger and Periodismo de Barrio director Elaine Díaz, who headed up a group of nine reporters there.
These kinds of arbitrary police actions, authorized by higher-ups in the military dictatorship, clearly demonstrate the lack of legal guarantees protecting independent journalists.
The Penal Code and Law No. 88, for the "Protection of national independence and the Cuban economy," of 16 February, and No. 199 (the infamous "Gag Law," still in effect) are aimed at legally foiling the free practice of journalism by authorizing arbitrary arrests, summary trials, and long prison sentences.
In this way freedom of speech and expression are strictly controlled by the dictatorship.
A series of violations set down in the Penal Code, like contempt of court (Article 144), libel, defamation and slander (Articles 320.1, 318.1 and 319.1, respectively), enemy propaganda (Article 103), the spreading of false information (Article 115) and the famous "crime against State Security," contained in Article 125, Subsection C, allow the judicial authorities to arbitrarily prosecute independent journalists and sentence them to years in prison, with these arbitrary laws hanging over them like a Sword of Damocles.
The "Gag Law," meanwhile, defines as crimes supporting, facilitating or assisting the embargo, or promoting the economic war against the Cuban government. Invoking said law, in March of 2003 President Fidel Castro ordered the arrest of 75 pro-democracy activists who, after summary trials, were sentenced to extensive prison terms, in what became known as the Black Spring.
The fact that the embargo laws remain in force is not a legal justification for the Cuban regime continuing to enforce its draconian Law No. 88.
The Gag Law specifies several crimes related to the freedom of speech and of the press. Article 7, for example, states that those who collaborate with radio or television stations, newspapers, magazines or other foreign media, can be tried and sentenced to 2-5 years in prison, a fine of 1,000 - 3,000, or both.
With regards to the freedom of speech and information, the Cuban Constitution addresses this right in its Article 53, which recognizes freedom of speech and press "in accord with the aims of socialist society," and cites as a guarantee for the exercise of these freedoms that the media belongs to the State and cannot be privatized – which actually guarantees their exclusive use by the military elite that has been in power for more than 57 years.
The Constitution's Article 54 recognizes freedom of speech and opinion, based on an unlimited right to initiative and criticism; but always subject to the straitjacket imposed by the Communist Party (PCC) through its Ideological Department, which determines the limits curtailing the right to assemble, demonstrate and associate, these restrictions being imposed on alternative civil society organizations.
For the various agencies of the State, the PCC, and its satellite organizations – the UJC, CTC, ANAP, FMC, UNEAC - Article 291 of the Penal Code makes it clear that any employee of these State, Party or social organizations that impedes or obstructs the work of official media agents exercising their right to the freedom of speech and press, as provided for by Articles 53 and 54 of the Constitution, can be sanctioned. The offense may be compounded if they are found to have abused their positions.
However, as Cuba's perfidious and corrupt bureaucracy controls everything, there are scarce cases of State officials, executives of State enterprises, or PCC leaders who have been brought to trial, prosecuted and convicted of obstructing the work of official journalists.
Susana Gómez Burgallo, a journalist for the paper Juventud Rebelde, in an article entitled "Como hacer un reportaje en Coppelia" (“How to Cover Coppelia”) related all the hurdles and obstacles thrown up by the management of the ice cream company and the leaders of the Gastronomy and Trade Business Group in Havana, who kept her report from coming out.
Days later, the Juventud Rebelde published a letter signed by Odalis Olga Martinez Pérez, General Director of the Union of Trade and Gastronomy Companies, in which she recognized the difficulties suffered by the journalist. The missive stated that no civil servants of the companies and units belonging to the Trade and Gastronomy Business Group are authorized or empowered to hamper the execution of journalistic work, as indicated by the Provincial Assembly of the People's Power and the leadership of the Union, and that it is not true that journalistic work in any of these cases must be approved by the first deputy chairman of the Council of the Provincial Administration.
Civil servants for the Recreation and Tourism Company (Recreatur), the Heladería Coppelia (ice cream co.) and the aforementioned Business Group, gave the journalist false information and deliberately stopped her from completing her report. In response to this misconduct, the decision was made to sanction them and definitively demote them to lower positions, as well as to officially admonish and condemn the actions of Union officials.
In her letter Odalis Martínez Pérez does not refer to Article 291 of the Penal Code, though she should have, because the violations committed by these officials at the RECREATUR and Unión de Empresas, abusing their positions to prevent the exercise of the freedom of the press, as guaranteed by the Constitution and laws; and impeding the journalist from freely doing her job, constituted criminal misconduct, and should have been sanctioned as such, which did not happen.
The Constitution and the Penal Code are wielded against independent journalists, but never against officials at UEB companies and units and other ministerial bodies. Although stipulated in no document, its managers have not hesitated to issue verbal instructions to their subordinates to prevent any journalist (even official ones) from accessing any UEB company, completing any reports, or conducting any research, without their previous authorization – which, as a general rule, is not granted.