The verdict handed down to José Daniel Ferrer and his fellow defendants with the Cuban Patriotic Union (UNPACU) has revealed the judicial system's lack of independence.
Justice and the law are different things, but in this case neither were delivered or respected.
On October 1, 2019, after the alleged commission of two crimes, Ferrer and his colleagues were arrested by a squad of more than 60 police officers trained in assault tactics. The reason for this operation was a simple altercation that took place at UNPACU headquarters involving an individual who showed up there inebriated.
Thereafter, a series of irregularities and arbitrary actions ensued.
The First Chamber of the Provincial Court of Santiago and the Criminal Chamber of the Supreme Court bungled his habeas corpus protection, as the judges did not instruct police authorities to physically summon José Daniel Ferrer, to question him, as is clearly indicated by the law.
Before the trial, on National Television the government proceeded to paint a picture of a dangerous, inhuman Ferrer, who was even guilty of a felony, thereby biasing the judges and violating the Constitution. The Justice Ministry, on its official Twitter account, even went so far as to assert Ferrer's criminal co-authorship the day before the hearing.
When the indictment was formally filed, the judges should have returned it to the investigative stage so that each defendant's statement could be thoroughly investigated, an opportunity that the judiciary should have, at the same time, taken advantage of to redress the inequality generated before the case reached trial. Instead, it was decided to detain the accused, even after the oral proceedings.
At the trial, a contingent of uniformed and civilian paramilitary forces, along with members of the "Rapid Response Brigades", filled the courtroom, "protecting" the lawyers and judges, in violation of the transparency principle stipulated in Article 305 of the Criminal Procedure Law: Ferrer, who was being tried for a simple crime of assault, should have been public.
The trial, dragging on much longer than is normal, rather than proving the commission of the crimes in question, ended up revealing its irregularities.
Two witnesses were turned away by State Security at the entrance to the courthouse. A third, called to testify on Ferrer's behalf, was also never allowed to testify, as "he had left for the capital". The alleged victim's wife, who posted a video on social media stating that her husband had been drunk and fell off a motorcycle, thereby belying the accusations of assault leveled at Ferrer and other defendants, was intentionally seated in the gallery, in order to invalidate her before the court. Her deposition was never taken, and the video was ruled out, as "inappropriate." Meanwhile, it came to light that the co-defendants had been forced to confirm the government's version of the events in their testimony.
By law, within 24 hours of the conclusion of initial proceedings judges must discuss their verdict, behind closed doors, and their conclusions are to be recorded in an internal document called the Judgment Discussion and Voting Minutes, drawn up to safeguard the case from third-party influences and prevent subsequent discrepancies in the ruling. In Ferrer's case all the indications and results show that the Minutes were never drafted. If the sentence ultimately imposed was four years of house arrest, the court should have announced Ferrer's immediate release, as the sentence was incompatible with the precautionary provisional detention measure.
That is, all the days that Ferrer spent in prison, except for the 24 hours after the oral trial proceedings, were arbitrary and illegal. There was no legal justification for this. The only possible explanation is that judges had to consult another, higher body, resulting in the delay in the announcement of their final judgment.
The spirit behind the language of Article 34, which governs the limitation of liberty, precludes the application of this sentence when the accused is already being deprived of his liberty. In such a case, in a standard criminal trial, without the influence of third parties, the offender should have been sentenced to incarceration.
In light of all this, it is clear that this was a trial in which political interests prevailed.
Cuba's judicial system should learn lessons from what happened to Ferrer and his fellow UNPACU members, and rethink where the roots of the problems lay, and solutions to the breaches of both justice and the law that occurred.