If anyone still harbored any doubts as to the Cuban courts' lack of judicial independence and their subordination to the Communist Party (PCC), the regime itself and its officials recently dispelled them.
"The top leadership of the Cuban Party and State recently issued several general directives aimed at strengthening the prevention and punishment of crime, corruption, illegalities and social indiscipline significantly affecting the proper functioning of society, calling on the population and the bodies, agencies, entities and organizations in general to increase, each in its field of action, actions to spur and combat this harmful phenomena."
The excerpt constitutes the first WHEREAS clause justifying Directive 273 (2022) of Cuba's People's Supreme Court (TSP). In how many countries does the party in power issue "directives" to its Judiciary? Perhaps the better question is to ask in how many democratic countries something similar occurs.
According to Article 147 of the Constitution, approved in Cuba in 2019, "the function of imparting justice emanates from the people and is exercised on their behalf by the People's Supreme Court and the other courts instituted by law." False. Said WHEREAS clause reveals that, in Cuba, justice "emanates" from its sole legal political party, to which less than 8% of the population belongs.
Article 148 of the Cuban "Law of Laws" states that "the courts constitute a system of state bodies structured with functional independence from any other." Can anyone believe this after reading the beginning of Directive 273?
At a 2018 meeting the president of Cuba's TSP, Rubén Remigio Ferro, acknowledged (in a video that DIARIO DE CUBA revealed in 2022) that in other countries the functioning of justice like that on the island was inconceivable, as in Cuba —and I quote the magistrate— things are done "Cuban style" and judges are "the judges are of the Revolution and of the Party," Ferro stated, without blushing.
The aforementioned directive stems, according to the second WHEREAS section, from the fact that "the proliferation of these harmful manifestations takes place in an extremely complex scenario, characterized by the intensification of the measures behind the prolonged economic war by which the Government of the United States of America seeks to subdue and subjugate the Cuban people; the impact of the international crisis, the effect of natural disasters and severe meteorological phenomena; as well as the existing limitations and shortages, which antisocial and unscrupulous people take advantage of to commit all kinds of abuses, such as theft and diversions of resources from public establishments; illegal commercial activities of goods and services with speculative and abusive prices; and illegal trafficking in foreign currency, among others; while there are also illicit and violent actions by individuals who promote and incite acts of vandalism and aggressions against institutions and authorities, for the deliberate purpose of altering public order and subverting the constitutional order in force."
The third WHEREAS passage is almost a copy of Article 4 of the Constitution, stating that "the State, its bodies and citizens have the obligation to strictly comply with and demand compliance with socialist legality; as well as the right to fight against any attempt to destabilize and subvert the political, social and economic order established by the Constitution."
The fourth states that the TSP, through its Governing Council, as established in Article 148 of the Constitution of the Republic, "is empowered to issue directives of a compulsory nature, for all courts, in order to establish a uniform judicial practice in the interpretation and application of the law (...)".
The courts? lack of independence may seem insignificant, with few real implications for the justice that citizens receive, when we read in the first article of the instruction that "judicial matters brought before the courts, at all levels, of any matter or jurisdiction, arising from situations such as those described (...) shall be processed and resolved, and the decisions adopted therein, shall be executed with the strict observance of due process and respect for the rights of the persons involved (...)".
What difference does it make that the courts are subordinated to the only legal party in Cuba if due process is guaranteed in the proceedings? It makes a huge one, and this is demonstrated in Article 4 of the Directive.
"When after studying the proceedings, the Court detects that the evidentiary elements to prove the alleged perpetrators' participation in the acts in question are lacking, or the legal qualification, the aggravating or mitigating circumstances of criminal liability, and the possession of the resources that served to commit the illegal act, or those proceeding from it, or that the premises of due process are not met, it shall return the proceedings to the prosecutor, indicating, with precision, the investigative proceedings and other actions it deems necessary to remedy this."
In other words, the accused are not to be acquitted and the case dismissed in the event of a lack of evidence, or due process violations. Rather, evidence must be sought and violations must be corrected... without releasing the accused. It is up to the judge to indicate to the prosecutor "precisely" what must be done to obtain a conviction.
The directive even calls for exemplary trials at the request of a "social or mass organization," such as the pro-government Federation of Cuban Women, the Cuban Workers' Central, or the Committees for the Defense of the Revolution, all of which are subordinate to the regime and headed by members of the only legal party.
Article 10 states: "When, due to the significance and magnitude of the crime to be judged, in relation to the conduct described in the first paragraph, the political or government authorities of the territory, a social or mass organization, or the administration of the entity where it occurred, request the holding of an exemplary trial, the president of the Provincial Court will listen to the arguments of the main authorities of the territory, at the corresponding level and, if necessary, will arrange for its holding with these characteristics at the venue of the judicial body. Exceptionally, trials may be held outside the venue, provided that the legal requirements guaranteeing their solemnity and transparency are met, with the prior approval of the President of the People's Supreme Court."
It should be made clear that, in practice, the functioning of the Cuban judicial system is not as terrible as it appears in the written instruction. It is even worse, this made clear by jurist Edel González Jiménez, a judge for 17 years in the province of Villa Clara.
"As long as they are in force, the directives are binding. A supervisory team of the Supreme Court, trained in observing compliance, annually observes, inspects and evaluates compliance. Those who do not comply suffer consequences of various kinds. Individuals may receive demerits or be disciplined. It is not an exaggeration to say that 'badly decided' cases are submitted to the President of the Supreme Court so that he, in accordance with the powers granted to him by the procedural legislation, may immediately order the revision of the sentence and issue a new one in its place, thus protecting the interest of the State that has been undermined."
"This revision and definitive sentence issued by the President of the Supreme Court may set free a State official, or order the imprisonment of an innocent person. For any decision, the justification is the fulfillment of the directive previously violated by the magistrate, judge or lower court," noted Gonzalez.