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Can the Family Members of Cubans Killed by Police Aspire to Justice?

An analysis of the existing legal instruments in Cuba and how the military and police try to avert their application.

Arrest in Cuba during the Covid-19 pandemic.
Arrest in Cuba during the Covid-19 pandemic. YONATHAN ELEGGUACITO/ FACEBOOK

In a space of just over ten days, the Cuban Police have killed two men. To justify both deaths, the official version of events cited "self defense". And, to dehumanize the victims, they were depicted as violent criminals.

In the first case, that of  Hansel Ernesto Hernández Galiano, age 27, the only witness was the officer who shot him. In the second, that of  Yamisel Díaz Hernández, 32, the officer was also alone, but this time in the official statement from the Ministry of the Interior (MININT) a farm hand, whose horses had allegedly been stolen, vouched for him.

The death of citizens at the hands of Cuban police happens, but it is hardly frequent. What is significant in these two cases is their temporal proximity, and that they occurred in a context of a whole series of reports of police brutality and other abuses.
In its official statements, the MININT briefly mentioned investigations into the events, but few details have been released. How much clarity and justice can the relatives of the deceased aspire to? Based on the provisions of Cuban law, and the way the military proceeds, they are, to a great extent, defenseless.

Who judges the military?

Crimes committed by law enforcement officers in Cuba in the exercise of their functions are not specially regulated in the Military Crimes Law, but rather a Special Section of the current Penal Code, or Law 62.

With regards to physical or psychological violence, if the agents commit crimes, including coercion, that result in murders, homicides, injuries, damages or abuse in the exercise of their functions, they face the same types of sentences as those slated for civilians, but the crimes must be confirmed by a military court (special jurisdiction), and there are other complexities to consider:

In criminal matters, there are two jurisdictions in Cuba: civil, for crimes in which general citizens are involved as victims, or as the accused; and military jurisdiction, for crimes in which at least one member of the military is involved in the exercise of his functions.

Military jurisdiction stands above civil in those cases in which the accused or one of the parties is military staff. Article 11 of the Military Criminal Procedure Law states that "it is up to the military courts to handle criminal proceedings ... when any military staff is accused, even if one of the participants, or the victim, is a civilian."

When a civilian dies at the hands of a member of the military, the competent military prosecutor must file a complaint for one of the crimes on the books against human life. The investigations carried out must be aimed at finding out whether he acted in accordance with the established protocols, and the victim's next of kin is to be apprised of the results.

Upon asserting in its official statements that the policemen who killed Hernández Galiano and Díaz Hernández acted in self-defense, the Ministry of the Interior jumps the gun, pre-judging a ruling that lies exclusively with the Military Prosecutor's Office, after the corresponding investigations.

Convenient disinformation

For the evaluation of the rights and limits of law enforcement officers, there should be a transparent Police Law that encompasses the operation, the various structures, hierarchies, code of behavior, powers and limits of the General Police Directorate (DGPNR). But, in a closed system like the Cuban one, such questions are not in the public domain - which favors those in uniform, and are well dispersed in various types of legal provisions.

Military Crime Law 22/1979 regulates only "military crimes; that is, socially dangerous actions or omissions prohibited by law committed by the military."

This regulation also establishes that the "provisions of the General Section and the Special Section of the Penal Code" are applicable to the military, provided that they "do not contradict" the specific provisions of the Military Crimes Law.

This law also authorizes the use of weapons: "the military is exempt from criminal liability," it says, "when acting as a guard or on patrol, or in the course of other surveillance services, or when making rational use of weapons to repel an obvious attack against the persons or objectives that protected or guarded, as well as personnel that jointly form part of the service; and also when, in compliance with these services, their preventive orders or voices are not obeyed, as established in the military regulations. "
People are not only unaware of these types of provisions, as are judges, prosecutors and lawyers under the ordinary civil jurisdiction.

The absence of a law that regulates the actions of the Police in Cuba, and the fact that resolutions, military orders and other types of higher- or lower-level legal provisions are not well known, make it difficult for police officers to be held accountable for their abusive actions.

This mess and legal dispersion also mean that the population does not know where to turn in the wake of police misconduct. Citizens often go to the MININT population services offices, or to the Public Prosecutor's Office, of civil jurisdiction, instead of bringing a formal accusation before the military prosecutor of the territory or region.

The police and military seek to be untouchable

Filing a complaint is a right of all citizens in cases of police and military abuse, as with any other. It is also an obligation for the Military Prosecutor's Office to process it, investigate, and provide a reasoned response to the victim or party affected.

It is a serious offense to impede the filing of a complaint that a citizen wishes to make against agents, or to refuse to do so. Likewise, late or superficial responses, or failure to respond, may entail disciplinary action for military prosecutors who are cognizant of these situations and in charge.

However, MININT members regularly shield each other against public accusations of misconduct, and fabricate retaliatory accusations of contempt, disobedience and resistance against those affected, resulting in "revictimization."
These types of actions are very frequent against dissidents, and have spread in recent months, with an increase in police brutality against the rest of the citizenry.

When filing complaints against agents and officials for abusive acts, the alleged perpetrators often never receive injunction, or are never subjected to precautionary measures. They can usually be found later performing the same type of duties involving the population in the course of which they previously committed abuses. At most, those affected manage to get the agents temporarily reassigned to a new location.

Although the official press has covered numerous exemplary trials for various types of crimes since the start of the pandemic, at no time has it reported disciplinary measures or proceedings against law enforcement officers, despite countless complaints from the population.

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