The pandemic caused by COVID-19 has entered our lives and not only in terms of health. Preventing and containing contagions has led to significant changes in daily life, in the exercise of citizenship and in the very functioning of institutions. In addition to hygienic-sanitary measures (use of masks, antibacterial gel, etc.), a large part of the governments have chosen to apply restrictive mobility measures. When these measures become compulsory, they imply a wide law enforcement deployment to implement them and, if necessary, correct the disobedience or punish it.
In Latin America, before the pandemic, police forces were already characterized as being one of the most abusive and lethal on the planet. In the context of quarantines, increases in police abuse have been reported. This violence, which in many cases has had racist, class and xenophobic biases, has also been characterized by impunity.
In the state of Sao Paolo, Brazil, despite the decrease in crime, police killings increased 30 percent between January and April of this year, compared to the same period in 2019. In Colombia, 400 cases of police abuse were reported in recent months. The demonstrations to denounce some, which reached notoriety, resulted in more police abuse and the death of civilians.
In Argentina, the Coordinator against Police and Institutional Repression (CORREPI) published 50 reports on police abuse described in beatings, torture, assassinations, rapes and forced disappearances, as well as 23 deaths in places of detention.
In Mexico, the increase in police excesses is repeated. Between June 1 and 5, in just five days, the National Human Rights Commission (CNDH) received 21 complaints of arbitrary detentions, when the average in recent years had been 2 daily complaints for the same reason.
The UN has warned about this problem on a global scale. It noted, with concern, that “governments have responded to the pandemic with an expanded role and a strong presence of police and other security actors.” According to the international organization, “challenges have emerged, including perceptions of bias, disproportionate use of force, and other issues related to human rights.”
These challenges, although articulated to the legal and socio-political context of each country, have shown the importance of discussing the role and scope of law enforcement in societies. Especially when the protection of public health is considered to be the highest goal.
This debate is also essential in Cuba. Certainly, in the country there is no practice of forced disappearances, the “easy trigger” or the recurrent death of civilians on public roads by law enforcement officers. However, since the pandemic began, a series of complaints have been registered that account for other types of police abuse, related to arbitrary intervention and the imposition of regulations aimed at regulating different angles of daily life, such as the acquisition of products, the subjects who can move on public roads and how to do it.
Thus, since March, different examples have been documented that account for the exercise of micro-violence, a term that designates those types of violence that are so common that they become naturalized within societies. The daily occurrence of these barely perceptible excesses constitutes an exercise of power that conditions and lacerates people’s lives and rights. The problem, then, is not minor.
Protection of public health and guarantees in Cuba
On May 15, a pregnant woman was about to buy disposable diapers in a store in Havana when some military approached her, forbidding her to stay there. The argument was supported by the measures announced by the pandemic: pregnant women have to stay at home.
However, the existence of a regulation on this issue raises doubts. The Granma newspaper published an article in which it illustrates the absence of legal provisions that explicitly prohibit pregnant women from circulating on public roads: “No one said they couldn’t do it. Now, unfortunately, there are reports of desperate pregnant women who, when going to stores like La Sortija or La Infancia, in Havana, to buy diapers and wipes, find answers such as ‘you have to line, to be able to enter’ or ‘neither pregnant nor people with children enter the store, even if they stand in line.’”
Although in the initial stage of epidemiological containment, television persuaded the compliance of strict isolation, especially the elderly, pregnant women and children, the indication did not have legal support.
This lack of legal protection has led law enforcement officers to arbitrarily limit the movement of pregnant women and minors on public roads, when the realities of pregnant women, single mothers, nursing mothers and caring for babies are very varied.
Given the lack of support networks, these women will necessarily have to leave their homes to get supplies and they will also have to face the authorities. Granma newspaper urges the sensitivity of these authorities, but it is not just about sensitivities, but about rights.
Cuban society has already lived in exceptional conditions for several months, however, the state of emergency has not yet been officially declared, in accordance with what was agreed in the Constitution of the Republic or with Law 75 “On National Defense,” which defines the circumstances for it to be declared and some rights that may be limited.
Although Law 75 does not by itself exhaust all the new legal relations that will be established under exceptional conditions, it does open the doors for a coherent and comprehensive normative production that organizes the life of citizens and their interaction with the authorities.
Meanwhile, Resolution 82/2020 of the Ministry of Public Health is the one that is legally governing the health emergency at a national level, although in strictly epidemiological terms.
For example, it explains what the quarantine consists of, but it does not define the powers of the authorities for this specific situation, it does not know the scope and limits of the actions of law enforcement officers, it ignores the functioning of the law-operating institutions, it does not make reference to the measures or violations that will take place during the new scenario or to due process in that case (use of the mask, mobility of children, pregnant women, the elderly, and their exceptions). The first limitation lies in that, as it is a ministerial resolution, it is not responsible for the regulation of other ministries or instances.
Recently, the restriction measures specifically for the capital were expanded, which were announced in the Mesa Redonda TV program. Among them is that the mobility of people and vehicles is prohibited from 7:00 p.m. until 5:00 a.m. the next day and at all times, the presence of minors or legally incapacitated adults who are on public roads, parks or other areas is prohibited, for which it is the guardians who will be applied severe fines of high amounts. Likewise, they “insisted on the need to reduce pedestrian traffic on the streets.”
As a consequence, Decree 14/2020 of the Council of Ministers was issued, through which infractions, measures, sanctions and procedures to make claims in case of nonconformity are regulated. It has been the first legal instrument that has provided for the appeal and the terms for it, which constitutes a guarantee for some rights of Havanans. However, it does not mention all the hygienic-sanitary measures that the population must comply with and this legal vacuum can lead to erroneous interpretations and bad practice on the part of the authorities. In turn, in an unusual action, the Supreme People’s Court issued a report in response to the consultation of the Provincial People’s Court of Havana on some imprecise procedural requirements and incoherent with the rest of the Cuban legal system, within the framework of the application of said decree.
The decree does not mention pregnant women, only minors. But what about that single mother who has to leave her home to get groceries and has to travel with a baby or a minor? What will be the exceptions to such widespread measures? What responses will be integrated for these vulnerable populations? The lack of clarifications and solutions for special cases is repeated with the announcement of the measures without legal support and with Decree 14. The arbitrary interpretation by law enforcement officers is also allowed, especially by the first subsection of section 2.1 of the aforementioned decree.
The “state of war” against an invisible “enemy” has exacerbated the presence of the country’s police and military forces in the streets, precisely when the population is in a state of economic, social, political and health vulnerability never experienced before. This imbalance of forces puts strain on citizens and their rights, especially when life in confinement and under multiple limitations is regulated by very few legal norms.
The woman mentioned at the beginning of this text managed to acquire the products she needed through a third person. She denounced the actions of law enforcement officers in her networks, in a publication that she later deleted, but which was widely circulated and generated various comments, which included similar cases. These show the tense limits between respect for rights and protection of health, when there are gaps and uncertainties about measures aimed at the latter.
Violence and racism
The case of anti-racist activist Aracely Rodríguez Malagón and her sister was also known in networks. On July 6, they were reported by a civilian to the police for being sitting on a bench in a public space near a line. Rather, they were denounced for presuming that they were involved in standing in lines for personal gain.
Under threats of taking them to the police station, without having committed a crime or any type of contravention, they decided to leave the place. As they walked away, they took a picture of the police officers, which led to the use of physical force against the two sisters, and even the arrest of one of them.
During the transfer, multiple violations of the law were committed. The most important was the unjustified arrest. Taking a photo of a patrol is not included in the penal code or in any other legal norm that regulates violations of the law, nor does sitting on a public bench waiting for a line.
In addition, the detainee was a victim of physical and psychological violence by leaving her locked in the patrol car with the windows closed. Faced with her warning that she was asthmatic, the law enforcement officers replied “now you’re going to suffocate until I’m done, for being loudmouthed.” When they finally got her out of the car, a police officer asked, “And where did this black woman with kinky hair come from?”
During her stay at the station, Aracely observed that “there were other people, all black, who waited for their measure and when the agents entered and exited they expressed all kinds of homophobic, racist and vulgar phrases without the slightest respect for the people around them, but they had power and they exercised it arbitrarily.”
The Constitution is not suspended. Article 42 obliges the authorities to treat all people equally, without distinction of “race” or gender. However, violence with racist and sexist connotations and abuse of power were exercised against Aracely. This ranges from the presumption of “anger” to the disparaging expressions of the authorities. Her detention was not justified by current laws, so much so that the activist was not given a fine or any warning. The patrol chief acknowledged that it was a mistake.
“However, the crime that weighs the most in this story is that of subtle, historical, endemic racism, the one that is not included in any code, or described in the criminal procedure law, but which remains very tattooed in the subconscious and actions of the majority of the police officers,” the activist concluded.
Abuse of power
In the province of Sancti Spíritus, television announcer Luis Ángel Cruz Gómez complained about “extremism,” “disrespect” and the “abuse of power” by the authorities, also through social networks. Cruz Gómez explains that on April 20, “past seven o’clock, on my way to the special bakery, as usual I stop on the promenade to check my phone and they approach me by surprise and impose a fine of one hundred pesos, supposedly for the danger of spreading the epidemic, I try to explain that at that time I am going to buy bread, I’m wearing correctly my mask, they don’t seem to listen….”
Considering the measures that, de facto and not in accordance with the law, are being applied, what would be the justification for imposing this contravention, if the announcer was wearing his face mask correctly?
Nor is there any regulation or indication that prohibits the movement of people on public roads at certain times, at least not for the province of Sancti Spíritus. With these arbitrary attributions that the agents of the authority are adjudicating, constitutional rights are being violated that at no time have been suspended. “I lost my rights as a citizen or I never have them, I seemed so dangerous to them that even I was scared, I think it is not fair, it is extremism and abuse of power,” he added.
Likewise, there have been police excesses similar to that of Andy Jesús Estévez Hernández, a university student, who was fined 300 pesos for “not complying with sanitary measures.” On April 23, Andy was in a line for eight hours, and after drinking water, he was intercepted by law enforcement officers and fined, without explanation, for not wearing a mask.
“At the Zanja Police Station I was treated like just another criminal, and my education, my conduct and my studies were worth nothing. They were unable to assess the situation and even check my background to verify that I was a good person. There I heard responses and comments such as: “If he’s thirsty, he should have returned home” and “University students are the first criminals in this country.”
The police excesses reported on social networks have reached health personnel. This happened to a doctor in Camagüey, who, after reporting his case on Facebook, also deleted the publication. Enabled to have priority in the lines due to his work in dealing with COVID-19, he was prevented from exercising his right by a law enforcement officer when he was about to buy supplies at the La Gran Señora store on April 24. The case was corroborated by other people, who picked up how the law enforcement officer snapped at him that the doctors do not have any priority in the lines, that his document could be false and that anyone can bear a paper like that. Even that doctors sell certificates.
An important measure to avoid events of this type against medical personnel, among other humanitarian reasons, is that the State made it easier for workers in the health sector to purchase essential products in the hospitals themselves, without the need to stand on line.
The mistreatment and abuse by the police were repeated in the case of Olga Lydia Fleita Díaz, 56. According to her testimony, on October 5, 2020, she was taken to the Zanja and Dragones police station for drinking alcoholic beverages on public way and for not wearing a mask. Once there, she narrated that “the bad manners and worse education continued, the desk officer, the one who takes your belongings, who incidentally did not look at my feet or remove the shoelaces, etc. They lock me behind bars with a padlock like a common criminal, while the real criminals were hanging out in the street…that’s what I told the unit shift chief…. How can they judge everyone the same way?” The current Criminal Procedure Law does not cover the actions of the police, nor does Decree 14 or Report 463. To enter a detention cell, the number of the complaint, the crime typified in the Penal Code and the record of detention is required, which is why administrative violations are not contemplated.
The law, rights and their guarantees
Legal uncertainty exacerbates people’s vulnerability and encourages the overreach of the powers of such sensitive forces as the police and the military.
Several of the measures aimed at containing the pandemic in Cuba are implemented without the legal backing that guarantees the rights of citizens. They are not published in the Gaceta Oficial or covered by their indispensable legal character (except for some measures, and for Havana). They have been announced on television, but this is not legal support to protect rights or to allege their violation. So, we find large gaps. For example, lack of knowledge of the limits of action of the authorities.
The extensive police presence on public roads and spaces, based on a constant discourse about the rigor and weight of the law by the institutions that control legality (such as the Attorney General’s Office) disproportionate the notion of justice and impartiality , and weakens the guarantees of citizens’ rights, as illustrated by the above cases. With these prerogatives, the people involved have been helpless.
During the months of confinement, Cuban police officers, in the performance of their duties, killed two civilians. Due to the mishandling by the media of the first event, suspicions in civil society about a serious excess of authority finally provoked a formal response by the national press media.
Cuban criminal justice is not characterized by impunity, but these very sensitive cases deserve transparency in the administration of justice with much more rigor than other examples. Public trust in security agents is at stake. State officials and agents, due to their public nature, are compelled to be held accountable and that the legitimacy of their actions in cases such as these is publicly verifiable by citizens, who trusts them in their mission of caring for and ensuring them their lives.
To find a balance between the crisis and the power of the authorities, it is imminent, more than ever, to strengthen the rule of law. It is essential that the current measures take an orderly and collegiate legal configuration among the different institutions.
The excessive application of the Criminal Code and punitive actions highlights a State with few resources for dialogue with its civil society. The accusatory and inquisitive tradition in law loses prominence when procedural guarantees can be executed, when rights are asserted.
As part of this debate, it is urgent to understand that micro-violence is not innocuous: it may not find limits and it may also transcend the notion of “micro.”