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Elusive Justice

Cuban courts are withholding documents from the relatives of prisoners and defendants to prevent them from being published on social media or in the independent press.

Palace of Justice, Santiago de Cuba.
Palace of Justice, Santiago de Cuba. DDC

Seven months ago Marta's son was accused of illicit economic activity, but the trial took place just a month ago. The delay was due, allegedly, to the Covid-19 pandemic. After the uncertainty and distress of five months during which her son was held awaiting trial, he received a three-year prison sentence.

According to Article 228.2 of the Penal Code the corresponding sanction is one to three years in jail, or a fine of 300 to 1,000, or both. In this instance, however, the court considered recidivism an aggravating circumstance affecting his criminal responsibility, as the young man had been punished previously. Marta was not satisfied and decided to pursue, once the appeal had been exhausted, a review process. For this she needed the previous rulings, which, due to the time that had elapsed, had been lost.

She first went to the court of her municipality, where She was denied, verbally, not in writing, a certified copy of the ruling. With what explanation? That this type of document is only delivered to the party tried; that is, her son, who could not request it personally because he was in prison.

The woman then went to the Bufete Colectivo (collective law offices) with the intention of hiring a lawyer to request a copy of the ruling. When they found out that the municipal court had not handed it over to her, the law firm too denied her the services of a lawyer, arguing that if the court had already said no, "the answer is no, and that's it." This second refusal left Marta and her son legally defenseless.

Marta is just one of the many people who, when turning to Cuba's courts or collective law firms to request certifications of rulings, resolutions, or lists of documents on behalf of family members who are imprisoned or unable to present any legal paperwork, run up against a wall of refusals: "It cannot be done", "That's not possible", "I have to ask about that, come back some other time", "You have no right; that document has to be requested by the prisoner, that is, the person tried."

The explanation that many of these people receive is: "We don't deliver documents to everyone, since they are being published on social media and in independent 'rags', or used to file complaints with international organizations in the hands of our enemies."

It is astounding that even Law graduates do not even blush when giving such an answer, which is both absurd and illegal, making it clear that the principle of access to Justice, which ought to prevail in any state respecting the rule of law, in Cuba is subordinated to the political interests of those in power. Let's not forget that, in the case of the minor recently raped by five men, when the mother filed the complaint she was threatened with jail if she spoke to the independent press about those who should help her to obtain justice.

A striking contrast

The refusal that Marta and so many Cubans with relatives in prison have received contrasts with the possibility of obtaining, on behalf of people living abroad, birth certificates, single status certifications, divorce papers, university degrees, study program documentation, and transcripts.

To obtain any of these documents, necessary for a relative abroad to marry or have their university degree validated, all they need is… convertible pesos. As this currency is about to disappear, it is very possible that in the future one will only need ... dollars. This is one profitable business, as the Cuban government makes some 250 CUC off the certification of grades and degrees, and they are not about to forego this revenue based on something as insignificant as the requesting party not being the interested party.

Neither the current Cuban Penal Code nor the Criminal Procedure Law indicate a way to access certifications of rulings, nor do they clarify who is empowered to request them. However, Article 78 of Law 82 on the courts stipulates that "judicial secretaries are obliged to: b) issue certified copies ... in the manner provided for by law."

Here it seems possible to apply the legal principle of not distinguishing when the law does not do so. However, Supreme Court Decision 212 of 2012, published in Ordinary Official Gazette 3 of 2012, contains an extensive interpretation of Article 84 of the Criminal Procedure Law. It states that "the notification is carried out by delivering to the person ... an authorized copy of the resolution". But, at the same time, it empowers the parties in the proceedings, and even third parties with the due justifications, to request certifications of rulings.

The resolution states the: "When the persons who hold the status of parties, jurisdictional bodies, prosecutors … or police investigators so request, the courts will issue certifications of the final rulings that they have issued, or of other actions that appear in the judicial proceedings for which they are responsible. In the case of parties, legal representation will not be necessary for the request, and the certification will be subject to a document tax in accordance with the form and in the amount established by law. Likewise, one may, exceptionally, in writing, delegate another person to make the request and receive the certification, which the court authorizes in duly justified causes."

In other words, according to this decision by the Supreme Court, Marta had the right to request a certified copy of her son's ruling. What is closer to someone than their mother or father? But neither she nor the Cubans who are denied this type of document are aware of this judgment. Lawyers and court officials and collective law firms know about it, but do not inform citizens, nor do they address it when denying what is requested of them.

The Criminal Procedure Law must be amended

As Cubans are ignorant of the laws and their rights, a state that the Government has an interest in sustaining, it is easy for it to deny them anything that it is does not want them to have.

Although, in theory, citizens can obtain certifications of final decisions on behalf of imprisoned relatives, it is evident that the Criminal Procedure Law must be modified so that this right is clearly indicated. The approval of a new Law on Criminal Procedure and a new Law on Courts was slated for October 202, on the legislative schedule approved by the National Assembly.

It is unknown whether they have been postponed due to the coronavirus, or have been approved behind the people's backs, which I hope is not the case. However, it should be borne in mind that the bodies that make the laws in Cuba are not obliged to present bills to the citizens so that they can suggest changes.

Most Cubans are so consumed by the search for food, the Covid-19 pandemic, and now the recently-announced monetary unification and its effects, that they attach little or no importance to the passing of laws. If the aforementioned have been approved without the public’s knowledge, most will not care, and that is a serious mistake.

Marta's story, which is that of many ordinary Cubans with a relative deprived of their freedom, or disabled (something that is, sadly, common in Cuba) demonstrates the importance of knowing the details of the country’s laws and how they affect us.

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