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Decree 349

Decree 349: What Does it Say and What Does it Imply?

On April 20, one of the most controversial legal texts in the history of socialist Cuba and its cultural policies went into force.

La Habana

Just 24 hours after his appointment, on April 19, 2018, Miguel Díaz-Canel signed Decree 349. On April 20, one of the most controversial legal texts in the history of socialist Cuba and its cultural policies went into force.

Decree 349 covers "violations of regulations governing cultural policies and the provisioning of artistic services," designed to update Decree 226 of 1997. Behind its title and ostensibly administrative purpose, it contains lie a series of rules and regulations that have triggered widespread protest.

One of the problems is the vagueness of what the text calls "non-State public spaces." Lawyer Laritza  Diversentexplained to El Estornudo that not defining what exactly these spaces are "paves the way for arbitrariness and legal uncertainty."

"If we turn to interpretation, we could surmise that 349 considers private homes, independent artistic spaces, and, especially those of the self-employed, to be non-State public institutions or spaces. Properties whose commercial value is not recognized (hairdressers, restaurants, nightclubs, etc.), because they have no legal personality," said Diversent.

This has led many to fear that, through this regulation, the authorities could intervene in places such as art galleries, or performance venues, which are often the homes of the artists themselves.

"It is true that they restructure and adapt these business properties (hairdresser’s, bakery, restaurant, etc.), but legally they are still private homes. The State does not recognize their legal personality, or the commercial value of the property," Diversent added.

Article 2.1 of Chapter II defines violations in the provisioning of artistic services, indicating that it will sanction both those "who facilitate or contract the provisioning of artistic services without prior authorisation by the entity to which the artist belongs."

There will also be reprisals against artists who provide these services without being duly authorized by an institution, and, ultimately, any individual who provides artistic services without being previously authorized to do so.

Such offenses are classified as "serious" or "very serious".

Article 3.1 states that it is a violation for someone to display audio-visual media that is pornographic, misuses national symbols, shows discrimination based on skin color, gender, race or disability; is pernicious for children or adolescents, or "any other that violates the legal provisions governing the normal functioning of our society with regard to cultural matters."

Article 4.1 also stipulates that the dissemination or performance of musical performances generating violence "with sexist, vulgar, discriminatory or obscene content" will be punished, as will the establishment of spaces for the commercialization of plastic arts without the corresponding authorisation or registration of the artist in the Directory of Plastic and Applied Artists.

Section III cites the punitive measures to be taken against violators of the provisions, which include fines and the "confiscation of instruments, equipment, accessories and other goods."

It is added that the authorized authority can "immediately suspend the show or the screening in question, and propose the cancellation of the authorisation to engage in the freelance activity."

Fines can range from 1,000 to 2,000 pesos, and the seizures can be applied independently, or in combination with the fines. These confiscations cannot include homes, however, as homes are not "confiscated," but rather "seized."

The most controversial aspect of 349 comes in its Section IV: the authorities empowered to enforce such measures. For this an official is designated, about which few details are included: supervisors/inspectors, who will be appointed by the Ministry of Culture or by its provincial bodies.

Those sanctioned may file appeals within 10 business days after the sanction is issued. Curiously, the entity empowered to handle appeals is the very same Culture authority; that is, Degree 349 states that the sanctioning body also confirms or suspends the provisions, thereby eliminating any independent legal consideration of the cases.

According to Diversent, in this way 349 does not take into account "possible conflicts of interest."

Thus, absolute authority is assigned to supervisors/inspectors to impose penalties based on their opinions of what constitutes a danger, artistic provocation, or what could be defined from the legal point of view as pornography, or discrimination, for example.

In general, society as a whole is prevented from doing its mediation work, a system of generalized surveillance of the contents of the country's artistic culture is established, and the intervention of a state apparatus is legitimized, based on police criteria, determining what the public may or may not see, while deciding who is an artist and who is not.

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