If the November 2023 visit to Cuba by EU (European Union) Special Representative Human Rights Eamon Gilmore demonstrated anything, it was that the Political Dialogue and Cooperation Agreement signed between Havana and the bloc in 2016 has been futile in achieving democratic advances on the island.
The regime did not refrain from persecuting dissenters during the European official's stay in Havana, and has continued to do so after his departure. Pressure brought by the EU to persuade Castroism not to trample on the rights of Cubans has been ineffective.
Article 85, Paragraph 3, Letter B of the Agreement establishes a suspension clause in the event of human rights violations. And yet, despite its awareness of Havana's infractions, the EU has maintained the pact and the financing of administrative structures and organizations unconditionally loyal to the regime.
Calls by Cuban and Europarliament activists for the EU to follow through on what was agreed to and suspend relations with the regime have fallen on deaf ears. Former Cuban judge Edel González Jiménez says that there is a via that civil society has not yet explored, and explains what it consists of, as well as its pros and cons, in an interview with DIARIO DE CUBA.
"There has been a unilateral violation of the Agreement and (the regime of) Cuba has enjoyed impunity. To date the political actions of independent civil society actors in Cuba, and EU politicians and groups of parties, have not been entirely effective, as they have not achieved majorities in the debates. Violations of freedoms and the maintenance of a legal scenario frustrating their exercise continue. These simple elements constitute a breach of an essential part of the Agreement," the lawyer states.
"The judicial via designed within the framework of the EU, which consists of suing representatives of Union countries and institutions that opt not to enforce essential parts of the Agreement, such as human rights, has not been exhausted."
"In principle, the EU and its member states cannot interact with states that violate human rights, and even less with States that do not show any intention to change for the better."
"The suit can be filed by a set of European citizens, including Cubans with dual citizenship, who certify being affected by the persecution on the Island and by the harmful actions or omissions of EU Member States or institutions with respect to the Agreement," explained the lawyer.
"It can also be filed by European citizens who, without being affected by the human rights violations committed by the Cuban regime, are interested in defending the principles and values enshrined in the founding treaties of the European Union, particularly those mandates established in the EU Treaty," González Jiménez added.
"Specifically, Article 5 says that 'in its relations with the rest of the world, the Union shall affirm and promote its values and interests, and contribute to the protection of its citizens.' It also says that it will contribute to "the eradication of poverty, and the protection of human rights."
"Therefore, anyone can file a complaint alleging a violation of Article 5 of the EU Treaty, without having to prove that violations of rights in Cuba affect them. What they pursue is that European law not be violated," said the lawyer.
"The Union is supposed to be a supranational structure promoting law, justice and legality, a reaffirmer of International Law. It is not enough for it to declare it; it must demonstrate it."
"This precept would be the fundamental argument advanced in the lawsuit before the European Court of Justice, the body responsible for ensuring compliance with such rules. The main aim would be an end to the Agreement, or a moratorium until its fulfillment by the Government of Cuba as regards human rights."
What would be the pros and cons of this route?
"Despite being a judicial action, the pros would be of a political significance that it would be difficult to evade. Once the complaint reaches the European Court of Justice, apart from the political debate that will be sparked within the Council and other institutions of the bloc, the Member States and EU institutions identified as the party sued by the plaintiffs will be put in check," explained the former judge.
"This means that the accused must respond to the lawsuit. The response will be preceded by internal political discussions within the democratic structures of countries, and the Union, forums in which allies and non-allies of the Cuban regime converge. According to the practice, an attempt will be made to negotiate a common position to respond to the plaintiffs, but the polarization of opinions existing between the Member States, the independence of powers, and the existing legal/constitutional technicality could foil any attempt to subvert the reality that is alleged."
"In parallel, the press and communicators will play their roles. All the defendants will be required to disclose why they are affiliated with a State that violates human rights. In the public and judicial spheres, theses of support for the Dialogue Agreement signed between EU member countries and the Government of Cuba will be affirmed or eliminated."
"The fact that the judicial machinery is addressing the matter would be a victory in itself, and would constitute a decisive step forward for the EU to consider the relationship it has with the Cuban government."
González Jiménez pointed out that the Cuban State is not obliged to comply with the rules of European law; for example, Article 5 of the EU Treaty, so it will only be a spectator of the process. However, "it will be very interested in the result," he added. "It will have to take action, even if it is not 'prosecuted,' if it wants to maintain its relationships with the EU and key member states that benefit it. It will have to adopt a new focus on the subject, as it will come under pressure due to the demands that the court's provisions will impose."
"The cons of this route would center on identifying a group of citizens committed to carrying out the legal action," says González Jiménez. "Supporting and accompanying plaintiffs in the effort, and ensuring an impact, would mean investing economic resources to mobilize specialized human capital, such as lawyers attached to a law firm, as well as professionals and experts from other disciplines with the capacity to respond in a timely and accurate manner to the defendants' claims if they do not decide to settle the claim."
Finally, the lawyer points to time as one of the obstacles to the judicial process. "Justice may take time, but one has to take the first step. It is advisable to combine the suit with the political actions that have been carried out so far."