Two years after its entry into force, the Cuban Penal Code, which was announced as the greatest modernization and update of the country’s Criminal Law, in accordance with the most advanced trends in world legal thought, has shown, in its content and application, to be closer to archaic and obsolete penal traditions, as well as unjust, in our legal system.
The legislation contains undoubted successes, such as the express prohibition of the use of analogy in Criminal Law, the elimination of the concept of pre-criminal social danger (a long-standing demand by Cuban jurists), the limitation of the duration of deprivation of liberty to a maximum of forty years and the substantial improvement in the definition of criminal types such as rape and so-called violent pederasty, now consolidated for the better into a single concept, sexual assault, as well as the classification of domestic and gender-based violence as crimes, and greater guarantees against discrimination.
The classification of many criminal figures in the Penal Code and the relationship between fundamental freedoms, rights and limits to their exercise is modeled according to an institutional vision that turns means into ends, in the name of the sacrosanct interest of the State, which justifies a priori, in addition to any violation of freedoms, the excessive punitive rigor (and even cruelty) and the so-called post-criminal security measures (and even pre-criminal ones, eliminated in the law, but not in practice).
The legitimacy, the justificatory reason of Criminal Law, is none other than to safeguard and guarantee the fundamental rights and freedoms of people, hence any inclusion of legal figures that are not strictly speaking human rights must be reviewed under rigorous scrutiny and the principle of minimum intervention. In other words, the means to protect and safeguard rights, as well as guarantee the reparation of damages, must always prioritize non-penal mechanisms — that is, those that do not involve deprivation of liberty or other punishments — and only use penal measures in strictly necessary cases. That is the meaning of the expression that defines Criminal Law as the last resort of all possible resources to be used by legitimate power in a political community.
In Cuba, the penal system remains essentially maximalist; it tends to opt, as demonstrated by judicial practice, for the custodial sentence as a solution to crimes, and promotes — in theory and even more so in practice — the conviction that penal punishment is the best — perhaps the only — way to reduce crime and control social conflict, a 19th century vision, typical of the liberal ideological positivism that dominated the entire 19th century and that only began to be questioned from various theoretical positions in the first decades of the 20th century.
An attempt to modernize Cuban Criminal Law and reduce its marked punitivism was the so-called decriminalization process at the end of the 1980s, which reached its climax with the Penal Code, Law No. 62 of 1987. This Code opted for a considerable reduction in the number and duration of prison sentences, limited to a maximum of 20 years, which could be extended, as an exception, to 30 in cases where it was imposed as a substitute for the death penalty, also reduced in terms of the number of crimes to which it could be applied.
However, this process suffered the effects of the Special Period, which revived the old and heavy legacy of punishment that had characterized Cuban Criminal Law since the 1960s. A series of legislative reforms increased the length of sentences, promoted the massive use of provisional imprisonment as a precautionary measure and of the dangerousness index (contrary to the basic principle of the presumption of innocence), extended the application of the death penalty to crimes for which it was not contemplated and, finally, introduced life imprisonment as a punishment, at the same time eliminating the maximum limit of 20 years of imprisonment (and 30 when it was imposed as a substitute for capital punishment). All of this made Cuba, along with the United States, the country with the most repressive and punitive criminal legislation in the hemisphere, which has not improved with the approval of the current Code.
The first thing to note in the current Code is the profuse use of terms and expressions with enormous doses of generality and vagueness, which opens the door to arbitrary interpretations, contravening basic principles of Law and of Criminal Law in particular. This paves the way for punitive excesses in the name of the interest of the State; the opposite of what a modern, progressive Penal Code committed to the protection and guarantee of citizen rights and freedoms should be.
Cuban criminal legislation (both the previous Code and the current one) prohibits conduct that is defined in an excessively generic way, such as, for example, in the criminal types of abusive use of rights (art. 120), those called “internal security” (art. 119), “unauthorized demonstration or association (art. 274),” and “against public order (art. 263).” In general, we see in them an exacerbated, even distorted, functionality of Criminal Law. This is seen in Article 1.1, which understands the latter as the guarantor of the “constitutional order,” of “collective legal rights, both political and economic,” as well as of “socialist legality.” Criminal Law is not that; these are functions of Law in general, especially Constitutional Law and Administrative Law. Such a position responds to a 19th century understanding that has been superseded in almost the entire world, opposed to that of the Enlightenment, which since the 18th century defended the rationalization of crimes and the humanization of sentences and the treatment of those sanctioned.
In the 21st century, a Penal Code based on such foundations is an anachronism. Furthermore, it deviates from the consensus known in the most advanced criminal doctrine as “Minimum Criminal Law,” which is that which only restricts or limits conduct that threatens the fundamental rights of people, where a serious impact on them must be manifested, and the result of the damage must be really significant (the so-called “Principle of Minimum Intervention”), which implies the preferential use of less harmful means to discourage legal violations, reserving criminal punishment only for the most serious conduct, which significantly damages or threatens the legal rights protected by Law.
The case of crimes such as disrespect and sedition is serious, in which, although there are minor changes in wording, the minimum sentences increase. For example, “disrespect,” “public disorder,” and “resistance” carry a minimum sentence of 6 months to 1 year of imprisonment and/or a fine, compared to the minimum of 3 months to 1 year of imprisonment and/or a fine in the previous Penal Code.
Similarly, “insulting national symbols,” which includes defiling or showing disrespect for the flag or the national anthem through other actions, now carries a sentence of 2 to 5 years of imprisonment or a substantial fine, or both, compared to the sentence of 3 months to 1 year of imprisonment or a fine in the previous Code.
Article 120.1 of the current Code allows a person who “endangers the constitutional order and the normal functioning of the Cuban State and government” to be punished with imprisonment of between 4 and 10 years. It is a testament to the generality and vagueness of expressions such as “endangering” and “normal functioning” when referring to such abstract entities as the constitutional order and the State and government, respectively.
Under international law, among human rights, the right to freedom of expression may only be restricted in very limited circumstances. Any restriction must meet all the elements of a strict three-part analysis: it must be provided for by law, it must be necessary, and it must be proportionate to the purpose of protecting national security, public order, public health or morals, or the rights or reputations of others. In addition, to prevent the abusive imposition of restrictions, there must be an effective process of appeal to an independent body or a process of judicial review.
For the first time, the Penal Code expressly allows authorities to severely limit freedom of expression on social media and classifies a series of ambiguously worded crimes related to “telecommunications, information and communication technologies” which, in a context referring to the exercise of such a fundamental right as freedom of expression, entails the risk of its infringement by State agents.
Furthermore, according to article 391.1, any person who knowingly disseminates “false facts” may be sentenced to between 6 months and 2 years in prison or a fine, or both, and will incur more severe penalties, among other reasons, if the information is disseminated on social networks or in social media in their physical and digital spaces. Likewise, anyone who “deliberately, in writing or by word, by means of drawings, gestures or actions, offends another person in their honor, incurs a penalty of deprivation of liberty from six months to one year or a fine…or both.” This crime is also considered aggravated if the information is disseminated on social networks.
According to international human rights law, laws that are worded in an ambiguous, vague and excessively general manner, for example, those that prohibit the dissemination of “false information” or punish those who offend a person’s “honor,” do not meet the three requirements mentioned above and are incompatible with the right to freedom of expression.
Among the most objectionable aspects of the Code is the increase in the number of crimes punishable by capital punishment. While most countries in the world have moved in recent decades towards the abolition of the death penalty, the Cuban Penal Code goes against the current by maintaining it, and even extending it, for serious crimes. The death penalty is the ultimate exponent of cruel, inhuman, and degrading punishment. Amnesty International and other global NGOs that defend human rights oppose the death penalty in all cases, regardless of who the accused is, the nature or circumstances of the crime, their guilt or innocence, and the method of execution. Furthermore, the best socialist thought since the 19th century has unwaveringly defended the abolition of the death penalty and life imprisonment.
The extension of the life sentence to a good number of crimes is also very serious. Until 1999, this sentence did not exist in Cuba, and the prison sentence was limited to a maximum term of 20 years, which could reach 30 if it was imposed as a substitute for the death penalty. The reform of the previous Penal Code carried out that year included life imprisonment as a penalty for a great many crimes, which was further increased with the 2022 Code. Life imprisonment is also the denial of the principle of re-education of the convicted person and his/her reintegration into society once the sentence has been served. In total, there are 31 crimes for which it can be imposed.
Particularly contrary to International Law is the classification of the crime of “Propaganda against the Constitutional Order” (art. 124.1), by which the legislator understands the conduct of inciting against the social order, or the mere enunciation or distribution of an idea (regardless of its medium of support), and is even aggravated when the conduct is carried out through a means of communication. Both the Universal Declaration of Human Rights, the International Treaty on Civil and Political Rights, and the American Convention on Human Rights (Cuba is a signatory to the first two) protect the fundamental freedom of any person to disseminate, seek, or express any idea, opinion, information, and not only of a political nature or of exercising their democratic freedoms, but also those of an artistic nature, which cannot be subject to more limitations or restrictions than those compatible with this convention, meaning only those that are necessary and appropriate in a democratic society.
The same occurs with crimes such as “Dissemination of False News” (art. 133.1), and “Clandestinity of Publications” (art. 185.1). The first, because it is disproportionate to use the punitive power of the State, even though it may be alleged that they are carried out with the intention of causing disorder. Even more so if the person does not have the objective and real means to do so. As regards the so-called clandestinity, the American Convention on Human Rights itself, in its article 11, provides for the right to life, which includes its “privacy” aspect, within which is subsumed the so-called “right to anonymity,” which is useful in the debate and deliberation of issues of public interest. By feeling free of reprisals, the person undoubtedly expresses himself without major restrictions, since international experience shows that anonymity is frequently used by minorities that have been structurally excluded. With this tool, they can raise their voice in support of their economic, social and cultural rights.
Now then, concerning the crimes included in the Chapter “Violence, offense and disobedience against public officials, the authority, its agents and other persons…” (especially arts. 182, 185 and 269), both the jurisprudence of the European Court of Human Rights, as well as that of the Inter-American Court of Human Rights, have indicated that there are specially protected speeches (and therefore, where the suitability of the use of Criminal Law must be proven more strictly and exhaustively), namely; i) the debate on matters of public interest, ii) opinions about public officials, and iii) those that deal with candidates in elections. This is why in the comparative jurisprudence of Latin America (including Mexico, all of Central America — except Nicaragua — and South America) the typical figures of insults, slander or libel against public officials have been repealed or abrogated, because they are notoriously incompatible with the international treaties on human rights (especially the International Covenant on Civil and Political Rights) and with the American Convention on Human Rights. Likewise, those that protect “institutional honor,” because as these continental judicial opinions have reiterated, the democratic order will be inverted and instead of protecting the fundamental right of people, which is the true purpose of Criminal Law (also called “Principle of Minimum Criminal Law”), it would be protected by institutions above them, and this is not in accordance with a democratic society.
With all of the above, the Penal Code, far from being a modernized instrument, repeats and even aggravates many of the deficiencies and bad practices that the criminal regulations in Cuba have dragged along. The death penalty, which is included in 23 articles, and life imprisonment, in 31, are sentences contrary to the spirit and letter of the Constitution because they violate fundamental, inalienable and inalienable rights: life and dignity first and foremost. Also contrary to the Constitution are concepts such as pre- and post-criminal dangerousness.
The first was formally eliminated from the text of the Constitution, but it remains a line of action for the public prosecutor’s offices and especially the police, as evidenced by the fact that police officers continue to issue official warnings that are presented in court as evidence of criminal behavior. The second remains in the text, violating values and rights such as dignity, equality and non-discrimination, under the label of “therapeutic security measures,” with a large margin of discretion for the judge, who can extend the therapeutic measure at his/her discretion, as well as apply it to a prisoner who, even without having committed the crime in question under the influence of drugs or alcohol, has acquired the addiction during his imprisonment, as provided for in article 106 and subsequent ones of the Penal Code.
In short, after two years of being in force it is possible to affirm that the Penal Code, as it was approved and is being applied, conflicts in many cases with the values and principles of the Constitution, which should constitute the axiological foundations of the interpretation; that is to say, criminal regulations must be interpreted by the courts in light of these values and principles, and in any case, preferring, of the possible interpretations, those that contribute to the greatest realization of the constitutional values and principles, or at least do not diminish or restrict them.
A process of constitutionalization of Cuban Criminal Law must begin, which must truly become the last resort to guarantee rights, and not to restrict, limit or make their exercise impossible, as has unfortunately been the case for a long time. The fact that the Constitutional Protection Law expressly prohibits questioning the constitutionality of laws or court rulings is a major obstacle to this. Consequently, interpreting infra-constitutional regulations by the courts, putting conformity with constitutional frameworks before any other consideration, becomes crucial in this process.
The Penal Code is perhaps the law that has demonstrated the greatest effectiveness in the Cuban legal system, which is far from desirable since it denatures the very function of the Law, with the consequences that this entails for the Constitution and, ultimately, for society as a whole. It is time for a deep and plural debate on these issues, which undermine and weaken the supremacy of the Constitution and its values and principles, and even the very functionality and legitimacy of the laws, and of the Law as a framework and guarantee of the freedom and equality of Cuban citizens.
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Bibliography:
- National Assembly of People’s Power: Cuban Penal Code, Law 151/2022 (GOC-2022-861-O93)
- Amnesty International: The State of the World’s Human Rights: April 2024
- Hernández Rivera, Carlos: Análisis del nuevo Código Penal de Cuba. Una mirada desde los derechos humanos.
- Walmsley, Roy (editor): World Prison Population List (tenth edition), ICPS, University of Essex, UK.
