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How is judicial independence trampled on and controlled in Cuba?

DIARIO DE CUBA spoke to former Cuban judge Edel García about how judicial independence is violated on the island and how the principle of 'equality before the law' is violated.

Ilustration. Diario de Cuba

Why in Cuba are the judicial cases of political prisoners such as José Daniel Ferrer, leader of the dissenting Patriotic Union of Cuba (UNPACU); rapper and activist Maikel Castillo "Osorbo," and Luis Manuel Otero Alcántara, artivist and a leader of the San Isidro Movement, dealt with "from above?" What does it mean that, in the proceedings against such high-profile figures, judicial action is a pure formality, given that their imprisonment had been decided before their cases were ever submitted to the regime's courts?

Cases such as those above, which are only the most visible among dozens of ones involving "enemies of the State," for which the island's regime has set up a judicial process with almost no checks and balances, explain the growing loss of confidence in the island's judicial system expressed by both citizens and independent civil society.

To explain how this repressive mechanism works, which violates rights that are even included in laws written by the regime itself, DIARIO DE CUBA spoke with former Cuban judge Edel González Jiménez, who agreed to answer questions from our editorial staff on the subject.

"Every day the abysmal administration being carried out by the judicial system in the criminal sphere in Cuba becomes more evident, especially since the series of trials after the massive arbitrary arrests for the protests of July 11, 2021, including detainees under 18 years of age, women with children and elderly people in their care, sick people, young people, and senior citizens representative of broad sectors of society, the majority of whom lacked criminal and/or police records or any links to dissidence, political activism or the opposition," the jurist indicated.

"Afterwards, other arrests and improper trials have continued, for participating in calls for protests, demonstrations during power outages, shortages, and other legitimate reasons, although none with the aim of overthrowing or transforming the political model instituted."

The jurist, who served as president of the Court of Villa Clara, finds it very detrimental to the exercise of the law in Cuba that the judges given habeas corpus cases choose not to comply with it, and that the causes for which provisional imprisonment is imposed are not thoroughly reviewed on a massive scale, as happened after 11J, among other flaws in the judicial apparatus of the regime.

"Judicial independence is the principle according to which the judiciary must be immune from interference by political or extra-political powers; that is, from the influence of private actors. Judicial impartiality and independence require that, to complete their mission of defending legality, and the enforcement of rights, judges, in the exercise of their functions, must be free from interference, influence or intervention. Judicial independence is vital in order to render the justice demanded by the parties in the process under conditions of equality," emphasized González Jiménez.

But how is judicial independence trampled on and controlled in Cuba?

There are four elements that control and subvert the principles of impartiality, judicial independence and the search for the material truth in the Cuban criminal process.

1. The Law and legal insecurity. The Constitution unduly endorses a single model of political, social and economic organization on the Island: socialism. The Organic Law of the Judicial System, or Law 140/2021, in line with the Constitution, states that judges, when handling and resolving any matter, are to obey only the Constitution and the existing legislation. Therefore, the administration of justice in Cuba is not democratic or inclusive, but rather inherently exclusive and discriminatory. Any judge who defies this mandate and the closed framework of ideological interpretation that it entails will have no place in the system.
This is aggravated by the fact that not all regulations have been issued yet to enable the actual exercise of fundamental rights, including the right to assembly/demonstration, for example.

2. Control over the election, tenure and promotion of magistrates, judges and officials. Under Decree/Law 13 of 2020, recently updated, the President of the Republic issues his favorable or unfavorable opinion regarding the appointment, election, tenure and promotion of key judicial personnel. He does so based on information and intelligence provided by surveillance bodies monitoring jurists with aspirations to occupy judicial positions.

These favorable or unfavorable opinions on magistrates, judges and managers are confidential, which renders them totally vulnerable to subjectivity, and there is no judicial recourse against them. Consequently, the power ensures its impunity.

3. Instructions. Both the Constitution and the Courts Act empower the Council of State to issue instructions to the judiciary via the Governing Council of the Supreme Court or the President of the highest body, constituting personal orders to be transmitted to the rest of the judiciary. These instructions have to do with the general administration of the judiciary, based on specific issues that are of interest to the group in power.

Behind every instruction and opinion there is a systematic internal judicial control system, so that contravening them can be considered a cause for revocation. In fact, one of the missions of the intelligence information bodies empowered to monitor judges is to verify whether instructions are being carried out in accordance with the spirit of the power.

4.  Finally, meddling in decision-making. Since 2014 Chief Justice of the Supreme Court has been repeating to the country's magistrates and judges that interference by a higher court over a lower one in an undecided case when it constitutes a matter in which there should be no "errors" does not constitute an infringement of judicial independence.

This judicial "philosophy" makes it possible for a criminal case, or any other matter before a municipal court, in which political interests, or the image of those power are being debated, to be challenged by a higher body before trial and sentencing. This body reviews it and returns it with "recommendations" which, although not mandatory, in the absence of  legal regulation, constitute, in practice, highly binding mandates both for the judges and the appellate and review judges.

This contravenes the principle of "equality before the law" for all citizens, which, in Cuba, always means that the rights of the State and the Communist Party take precedence over those of individuals.

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