Criminal Law responds, by definition, to the needs of order and security. However, humanist perspectives have historically intervened in its field, until today, to seek less damaging solutions and minimize the criminal consequences that involve the alienation of individuals from society.
In this, there are several criminal principles that seek to limit the power of the State and its right to sanction people. Among them are those of minimal intervention, criminal legality, culpability and non-discrimination. Opposition to the growth of conservative criminal tendencies, opposed to limiting the sanctioning powers of the State, has taken root about them.
In this conservative logic (penal expansionist) the penal policies and legislative techniques were oriented toward making “flexible” the basic procedural principles and guarantees, to advance the punishment (the increase in crimes that sanction the “danger” before the “injury” itself), to toughen sentences and create new criminal types.
The persistence of criminal expansionist tendencies has been a constant, sometimes even growing, and they are recognizable today in concepts such as “punitiveness.”
The Cuban process after 1959 was inserted, over the years, with ups and downs, in that expansive trend of Criminal Law, although it has been far from being an exclusive problem of the island.
Also, although it was far from having a Criminal Law minimum, there were moments of true progressive reforms in criminal legislation. This was the case of the 1987 Penal Code, which allowed the decriminalization of “insignificant” behaviors and the limitation of penal sanctions for certain crimes. It was a path that promised to be an alternative to what we now know as punitiveness.
However, today there are processes in the country that are advancing in a different direction from that time.
Social protest and Criminal Law
In the international field, the most progressive consensus defends keeping Criminal Law away from social protest. It seeks to minimize the violent legal response to crime with political origins. Criminal Law, an ultima ratio Law, particularly at this point, should be the last resort to be used.
With this, Criminal Law is not deprived of its mission to protect legal assets, but it is stated that not all legal assets must be protected by the criminal order.
Furthermore, it is affirmed that there are collective legal assets — such as public debate and the citizen’s ability to challenge the State — that are better protected when treated outside of Criminal Law. It is also recalled that, due to its repressive nature, Criminal Law has a lack of “original” legitimacy, to which is added its limitations in providing social solutions to crime.
There are other coercive instruments that do not involve the harshness of Criminal Law, and are less interventionist. This is the case of solutions for possible infringing conducts that do not entail serious “social harm,” typical of the field of Administrative Law (fines), Civil Law, etc.
With the use of Criminal Law there are always losers: the family, education, society as a whole, the notion of development and the future of the country lose. Its expansive use is a defeat for everyone. Another logic, humanizing, must rule in Criminal Law when imposing sentences.
With this criterion, the Cuban Penal Code (CPC) establishes that, when adapting the sentence, “the degree of social danger of the act, the concurrent circumstances in it, both mitigating and aggravating, the motives of the accused, as well as their background, individual characteristics, behavior after the execution of the crime and possibilities of amendment” must be taken into account. (article 47.1)
The guiding principle of adequacy is the proportionality of the sentence. The proportional sentence is concerned with the importance of the criminal act for society. Also, and very especially, of the need for the sentence for the specific individual, that is, if the sentence is suitable and necessary to fulfill its purposes.
The Abel Lescay case
Let us compare these principles with the case of Abel Lescay (22 years old), a university music student, to whose sentence the authors of this text have had access, who participated in the July 11 protests (J11) of 2021.
The sanctioning frameworks for the Lescay case were expanded when assessing: a) the continued nature of the crime of contempt in its aggravated modality (that is, from 1 to 3 years of deprivation of liberty); b) a crime of public disorder; and c) a crime of contempt in its simple form, also on an ongoing basis. The joint sanction was six years’ imprisonment.
To adapt the sanction, the judges made special reference to the context in which the events took place: “a complex and difficult epidemiological situation that the country was going through due to the COVID-19 pandemic.” The court understood this circumstance as “aggravating.”
The global situation of the pandemic served as a pretext in many contexts to take measures that went too far, at least, in restricting freedoms and violating procedural guarantees. For this reason, using the pandemic as a justifying resource for judges and legislators has been highly criticized by very different actors.
In the criminal order, with even more reason, the relationship of some events with the pandemic — a health, economic, social and personal emergency — cannot be established on general premises that serve as a sack for any situation in order to harden the sentences.
On the other hand, the severity of the sentence for the case of Lescay, in the opinion of the court, was due to the persistence of his conduct, even on the very day of his arrest. For the court, he was the one who “with the greatest irreverence confronted the police authorities of the territory where he lived.”
Although in the sentence itself it is recognized that Lescay “stated that he felt sorry (for) his repeated acts and disagreement with his detention,” this does not prevent the court from being told that “it denotes the scant chance that he will amend his behavior with a less stringent sanction than the one established.”
To highlight this idea, it refers to his “socially maladjusted behavior.” According to the CPC, the social behavior of the individual and the criminal record are vital to adapt the sanction. The limits between a deprivation of liberty sanction and the possibility that it be subsidized by another that does not entail imprisonment (such as correctional work without internment), often depends on assessing social and personal elements.
In this order, the sentence against Lescay contains contradictory elements. It is stated that in the case of “Abel, Omar and Ángel, it is a case of a social misconduct, which was confirmed through the complementary investigations and the criminal record certificates regarding their actions.”
However, Lescay does not have a criminal record, according to the sentence. Where, then, was the weight in concluding that Abel had “social misconduct”? According to the judges, it rests on an investigation carried out by a “competent authority” and “in compliance with the formalities established for these cases.”
On the contrary, the judges did not offer credibility to three witnesses who “attributed positive behavior of the defendant Abel as a student and in his place of residence.” Nor did they give credit to letters about his positive behavior as a student, sent by the main authorities of the University of the Arts — ISA — (Rector, General Secretary, Head of the Composition Department and President of the Federation of University Students) and by the Hermanos Saíz Association.
For the court, Lescay’s “improper social behavior” is compatible with his status as a “good student and professional.” Given these apparent contradictions, how can one impose a sentence — at the time of writing this text, the sentence is not yet final, since the appeal is yet to be completed — of deprivation of liberty?
What motivations are there to sentence a young man of that age, without a record, to six years in prison for the crimes he is charged with? What motivations can exist for not avoiding the “savagely rational” aspect of Criminal Law and submitting him to prison? Is it possible to conceive that, for the case in question, imprisonment is the only “possibility of amending his behavior”?
A possible answer can be found in all the political and judicial mediations with which — we think that in a mistaken way — the State is trying to give a response to the political and social moment, so difficult and conflictive, that Cuba is experiencing.
Contempt as a crime
The facts proven in the Lescay sentence describe conduct constituting various crimes, including a crime of contempt in its aggravated form.
The regulation of aggravated contempt sanctions up to three years to that person who “threatens, slanders, defames, insults, injures or in any way outrages or offends,” if the offended is a person who holds one of the highest institutional positions in the country. This description was taken into account in the case of Lescay, for insults against Cuban President Miguel Díaz-Canel Bermúdez, a fact that can be verified in a video released to the public.
The sentence against Lescay does not mention the commission by him of acts of physical violence. However, the program Con Filo, on national television, assured that Lescay admitted having thrown stones (“something that he himself admits,” it was said then, starting at minute 8.40) Con Filo did it, moreover, in the middle of the legal process against Lescay, violating recognized ethical principles in this regard, which demand not using state means to predispose public opinion to a case in progress.
The sentence imposes most of its sanction for other types of crimes, committed in the absence of physical violence by its commissioner: offenses and disobeying authorities, corresponding to contempt, and public disorder.
Due to the problems it poses, for at least a couple of decades an international trend has demanded that contempt be decriminalized. Various criticisms show its incompatibility with the rights of expression, and claim that it usurps the principle of popular sovereignty, by limiting citizen criticism and protest.
This has not prevented enabling other protections of the State, and of its representatives, less restrictive for citizens, such as the reply through the media, or the establishment of civil actions for defamation and insults, as Rafael Correa claimed in Ecuador.
As a criminal type, contempt includes a pre-modern idea, which ensured that “State bodies, by the mere fact of being so, were worthy of all the trust and support of the population.” That vision protected the honor of the authorities and sought to let them work “calmly.” The idea presupposes the culture of secrecy and the notion that the State deserves obedience and even loyalty, a pre-political thesis.
If sovereignty lies with the people, and public authorities are owed to the sovereign, that protection is an unfair inequality of treatment. Contempt results in protection in favor of the person who should be most exposed to public challenge: the state official.
These types of protections for authority hinder the development of critical discourses as well as personal rights of expression, conscience and participation. On the other hand, they strengthen the authority of the State, which already has resources of power, decision and information far superior to that of a citizen, or groups of them.
In Latin America, Argentina was the first country to decriminalize contempt (1993). Other countries started processes that ended up doing so: Paraguay (1997), Costa Rica (2002), Peru (2003), Panama (2007), Nicaragua (2007), Uruguay (2009), Ecuador (2014) and Chile (2001-2005). Others did the same, but through their highest courts of justice, as happened in Honduras (2005), Guatemala (2006) and Bolivia (2012). By 2016, in the region contempt was only penalized, in addition to Cuba, Brazil, El Salvador, the Dominican Republic and Venezuela.
Of course, this does not make up a very encouraging panorama for social protest on the continent. In addition to the extreme case of the murder of social activists in countries such as Colombia, Honduras or Brazil, a wide repertoire of actions limits the protest and generates various types of damage for the protesters.1 However, the figure of contempt appears less and less within this repressive repertoire.
For its part, the new draft of the Cuban Penal Code preserves contempt. It repeats the sanctioning framework, but increases the institutional positions protected against contempt.2 This draft — which has not been submitted to a consultation and plebiscite as has been done with the Family Code draft — has contents of criminal expansionism, far from the Penal Code minimum, or the notion of ultima ratio. Thus, it is far from the humanizing spirit that accompanies progressive notions of Criminal Law, and is in favor of punitiveness.
The regulation of social protest in Cuba and its political context
The Cuban Constitution protects (art. 56) the rights of assembly, demonstration and association, which in turn limits them to fulfilling “lawful and peaceful purposes,” and when they are recognized “by the State, provided that they are exercised with respect for public order and compliance with the provisions established by law.”
Despite the constitutional mandate of 2019, there is still no law that regulates these rights. The dominant interpretation after 1976 calls for complementary laws to exercise rights, instead of applying the Constitution directly.
The Constitution does not expressly protect the protest. Even so, protest is a way of exercising the right to demonstrate — both are often assimilated into international laws and conventions — with a sense of opposition and vindication that does not require permission in certain situations.
Without the right to protest, the rest of the rights can become fallacies on paper. The genealogy of this idea is found in the republican, revolutionary and democratic tradition, of popular sovereignty and the right to resist authority, which was recognized by both Karl Marx and José Martí as well as Fidel Castro on the occasion of the Moncada trial. It is part of the notion of Republic to which the Cuban State is constitutionally bound, and which is also included in international treaties, some of which Cuba has signed, but not ratified.
The constitutional regulation of demonstration asymmetrically favors the State, the same that would be the object of the protest. In this way, the possibility of criminalizing the protest increases due to the mere fact of treating it as illegal by state authorities, without there being effective channels for the citizenry to challenge such a decision.
The current regulation on demonstration, even if it can take place, forms a version of protest that could be limited to conditions of “time, place and manner.” There is no debate in Cuba about the ways in which such limitations can empty the very meaning of a protest, and even make it ineffective.
Even less is there debate about more radical — revolutionary — notions of protest that understand it as a deinstitutionalized act, which exerts force to pressure the constituted power. There is hardly any recognition of the legitimate space that expressions of disruption should have in the face of the political system. It is a logic that affirms a fact as simple as it is powerful: a worker who throws a stone during a strike does not eliminate the right to strike.
The U.S. policy of internal interference, with the declared objective of “regime change,” is part of the Cuban context. It is a key variable, insofar as it provides a differential element, which the vast majority of countries do not have, and which crosses the decision space made by the Cuban government.
This policy — more than 60 years old — “has failed in its objectives,” as the Obama administration declared when proposing a “new beginning” for relations with Cuba. However, it continues to be applied with assumptions and conditionalities that are unacceptable in International Law. However, responding to it with restrictive human rights policies and repressive strategies for differences is part of the problems, not the solutions.
Any type of arbitrary interference with a sovereign national community is illegitimate.3 Being confirmed agents of such arbitrary interference is illegitimate, and challenges the moral imperative that demands the fair exercise of the Law. There are no enforceable democratic participation rights if one is part, proven by fair law, of a foreign agenda of arbitrary intervention in any sovereign country.
However, the legitimacy of the state defense has conditions. Sixty years after 1959, simply invoking the “right of the Revolution — or of the State — to defend itself,” without mentioning the correlative duties of the State and the rights of citizens, is to deny, even, strong contents of the Cuban official discourse itself.
It means ignoring two constitutions and three constitutional reforms approved after 1959. It means rejecting the entire process of institutionalization and the processes in which Cuban citizens have proposed to modify aspects of that political order. To do so now is to go, furthermore, against the constitutional promise of the “Socialist State of Law,” regulated in the current Constitution, but whose realization seems to be a contradiction in itself with respect to the design and practice of the political model.
Other pending debates: justice in the face of the Law
Other types of political debates remain absent. There is hardly any discussion about the “Rights of the excluded”: how people in situations of social deprivation and political exclusion, who experience the violence of poverty and the lack of political representation through the Law, see their condition reinforced and their victimhood duplicated: because of poverty and because of the legal punishment they receive for protesting against this.
The official Cuban discourse is oblivious to ideas like these: there is no democracy without space for protest. The appeal to “consensualism” (“we are the majority”), and to “constitutionalism” (“the protection of the constitutional order”) with which it has explained the judicial response to J11, replicates very restrictive liberal views on democracy, which ignore the conflict as a key to the elaboration of the policy, and reject instances of social dialogue and political channeling of the conflicts.
Although the official Cuban discourse, notably that of Fidel Castro, located poverty as a violation of human rights, that idea does not apply to the internal scenario that gave rise to J11. Poverty and marginalization are contrary to any strong notion of democracy, and open political rights on the ways in which both can be contested.
For all these reasons, the transformation of Cuban state behavior around social protest needs to connect dimensions such as social class, gender, skin color, with conditions of poverty and inequality, with the Law; and recognize the popular agenda in demand for rights and space for participation as the core of the democratic elaboration of politics.
1 Among them, the criminalization of behaviors; the intervention of the Armed Forces; the abusive police presence in the “preventive control” of protests; massive, arbitrary and violent arrests; the presence of uniformed police personnel without visible identification and of infiltrated agents; the scant regulation of the use of force; impunity for police violence; surveillance and intelligence work against social movements, etc.
2 “If the act provided for in the previous section is carried out with respect to the President or Vice President of the Republic, the President of the National Assembly of People’s Power, the other members of the Council of State or the Council of Ministers, the deputies of the National Assembly of People’s Power, the President of the People’s Supreme Court, the Attorney General of the Republic, the Comptroller General of the Republic or the President of the National Electoral Council, the sanction is imprisonment for one to three years.”
3 Here we use ideas that we wrote earlier in this text.