The draft version of the Law of Expropriation for Reasons of Public Utility or Social Interest is one of those published on the website of the National Assembly of Popular Power last November, so that Cubans can express their opinions on it.
According to the text, the new regulation will govern the provisions of Article 58 of the Constitution, establishing the basis for determining the utility and necessity of compulsory expropriation, the guarantees due, the procedure for expropriation, and the form of compensation.
However, the lack of a law had not prevented the Cuban regime from carrying out countless forced expropriations over the course of 63 years. For this, the direct mandate of the Constitution was enough.
Curiously, the provisions of Cuba’s Constitution have not sufficed to legitimize anti-government citizen protests. Despite the fact that demonstrating for peaceful purposes is a constitutional right, the convocation of the Archipiélago platform in November 2021 was outlawed. Cubans who protest against the regime are criminalized and the law that should regulate this right does not exist.
Therefore, the purpose of this Expropriation Law is to endow this practice with a legal veneer, although formally its purpose is "to strengthen and perfect the legal framework of the Cuban State, the fulfillment of its duty to guarantee the people the use, enjoyment and free disposal of the assets of their property, in accordance with the provisions of the law; as well as to guarantee, as far as this law is concerned, the constitutional right of the people to the enjoyment of the assets of their property."
The only thing Cubans can be sure of is that the Government will continue to expropriate the rights and property of individuals under a legal framework, and to curtail private property, domestic or foreign, for the benefit of the elite under the protection of that framework.
This law was among those to be approved by the National Assembly of Popular Power in July. The publication of the draft on the website of the Ministry of Finance and Prices was announced in the digital version and not in the printed one of the Granma newspaper on March 23, despite the fact that not all Cubans have access to the Internet.
Some lawyers based off the island tried, unsuccessfully, to open the link to the Ministry's web page, pointing out that the preliminary draft was not available since Monday, April 4. Was it just a coincidence that it was not possible to open the link from Cuba either?
In any case, DIARIO DE CUBA was able to offer an analysis of the draft bill last April, in which Article 17, which cites reasons of "public utility or social interest, for the purposes of expropriation," was highlighted.
However, subsection (s) - subsection (r) in the preliminary draft - establishes "others expressly declared by the Council of Ministers," which allows this Government body to invent a pretext to expropriate if it does not find justifications in the reasons set forth in the article.
Article 54 states that "when the interest of expropriation stems directly from a public calamity or for reasons of securing internal order, or in the interest of guaranteeing national defense and security, and there is a pressing need to occupy the property, the corresponding authority may take immediate possession of the property necessary to realize this end, without any prior formality or other procedures, regardless of whether the process to determine compensation is followed."
It should be borne in mind that in Cuba there is no rule of law. Article 4 of the Constitution places the decisions of the Communist Party (the only one) above all juridical creation and administrative or judicial authority.
In the face of a decision by the competent administrative authorities of the Cuban State/Government to expropriate for "reasons of public utility or social utility" any property or private asset, whether of a national or foreigner, there is no valid legal action or special administrative process that can interrupt administrative or political actions to seize whatever is proposed.
The basis of compulsory expropriation in Cuba, and in states where private property is at the mercy of the "common good," precludes the expropriated party from retaining the rights and assets that it is decided to dispossess.
Now that the preliminary draft has become a bill, and is finally available to citizens, several lawyers want to draw attention to other aspects of the law. It establishes other generic grounds for expropriation such as "non-compliance with or deviation from the social function or specific purpose assigned by law to the property" (Article 17, paragraph r).
This allows for the expropriation of premises or housing belonging to a dissident Cuban where meetings are held that the regime considers illegal, or where what it calls "subversive activities" are organized.
In any case, if the expropriated party decides to file a lawsuit against the expropriation, the appeal will be rejected.
The respective administrative chambers, bodies competent to hear and resolve expropriation lawsuits, will never be able to question whether or not there are real "reasons of public utility or social utility." These concepts, where they are declared, constitute unquestionable political/administrative assumptions, however incredible they may seem.
Both this bill and the current Administrative Process Law exclusively empower judges to take the proceedings back to the stage where some key step was not complied with, or to air a disagreement that an expropriated party may express regarding the value of the compensation, having to argue and demonstrate why it is an unfair price.
It goes without saying that the value of the rights and assets in Cuba, where the law of the market and competition does not exist (officially and recognized by the State), will be determined by the experts attached to the Ministries of Economy, Finance and Prices; that is, subordinated to the interests of the government.
To this must be added the complexities and abuses imposed by the resolutions of the banking sector regarding the type of currency in which the State will pay the expropriated party (always in Cuban pesos) and the exchange rate it imposes on internal transactions involving private individuals.
Like this law, the new Housing Law was expected to be approved in July. Unlike the previous one, it was included on the legislative schedule drawn up in December 2019. However, the Housing Law does not exist yet, or, at least no preliminary draft of it has been announced.
The Cuban regime is, evidently, in more of a hurry to have a regulation to continue its expropriations, but now given a varnish of legality, than to address the housing problem, one of the crises that most affects the Cuban population, and that the government has not been able to solve in more than 60 years of socialist revolution.