When Law No. 151/2022 “Penal Code” came into force on December 1, 2022, a legislative process had been left behind that had very little public information and less debate, in contrast to what was happening at the same time with the Family Code.
The new Cuban Penal Code was born with worrying features of reinforcement of the punitive nature of the previous Code, Law No. 62.
The preceding law, although born at the end of the 1980s under the sign of progressive currents in vogue, soon suffered the attacks of rigorism and repression as tools to curb the social discontent that the Special Period brought about.
The new Penal Code, after twenty years of moratorium on the use of the death penalty, far from betting on a review and mitigation of the repressive excesses of the predecessor, seems to have been drafted with the purpose of using the regulation to act as a deterrent. Especially for those who intended to exercise in the public space the rights recognized in the 2019 Constitution, which was even said to contain the broadest catalog of human rights in Cuban constitutional history and at the level of the most advanced magna cartas of the world.
The new Criminal Law represents a setback and strong restrictions for the exercise of many of these rights, in addition to being a commitment to criminal punitiveness that brings it closer to the currents of right-wing criminal thought, even the extreme right, and distances it from the tradition of socialist thought, characterized by a radical rejection in the philosophical, ethical and practical fields, of the death penalty and criminal punitiveness in general.
The death penalty seen by the socialist tradition
Let’s start at the beginning: The majority (if not completely unanimously) of the socialist tradition from its inception was against the death penalty. Marx, in an article from 1853, made his position clear in this regard:
It would be very difficult, if not impossible, to establish a principle by which the legitimacy or relevance of the death penalty could be founded, in a society that boasts of being civilized. In general, the death penalty has been defended as a means of amends or intimidation. But with what right do you inflict a sentence on me to amend or intimidate another person? Without taking into account that history exists — and also things like statistics — to establish as total evidence that since Cain the world has not been amended or intimidated by the application of penalties.
Marx also paid homage to Beccaria, the great erudite and precursor of modern Criminal Law; who, by the way, was accused of being a socialist for proposing the abolition of the death penalty in 1764.
A resolution against the death penalty was passed at the famous Congress of the Second International in 1910 in Copenhagen. The Congress affirmed that the representatives of the proletariat (socialists united in the International) were the only real adversaries of the death penalty and that only with the coming to power and the extension of the culture of the working masses through political and union action this penalty could be effectively fought.
A resolution was passed inviting the political representatives of the working class to demand the abolition of the death penalty in their respective countries. The mechanisms would be found in parliamentary work and political propaganda; especially, through the socialist and worker press.
In 1918, after the fall of the Empire and the rise to power of the Social Democrats in Germany, Rosa Luxemburg demanded the abolition of the death penalty and, incidentally, long prison sentences, with these words:
A radical reform of the penalty system must be undertaken. But a completely new system, in keeping with the spirit of socialism, can only be based on a new social and economic order. All crimes and punishments have their roots deep in the social organization. However, there is one radical step that can be taken without complicated legal processes. The death penalty, the greatest shame of the ultra-reactionary German code, should be abolished immediately. Why does this government of workers and soldiers hesitate to do it? (….)
(….) The most inflexible revolutionary energy and the most generous humanism are the true essence of socialism.
As can be seen, neither Marx nor Luxemburg spared epithets to describe the barbarity of the death penalty, considering it contrary to the spirit and ideals of socialism.
However, one of the greatest tragedies of the so-called “real socialism,” once transformed by Stalinism into a bureaucratic and repressive regime, was that the abolition of the death penalty or long prison sentences was never raised. On the contrary, Soviet Criminal Law and that of the other countries of the bloc exhibited a marked rigorism and punitive excess that left in oblivion (or worse, branded them as bourgeois) the Enlightenment ideals and the humanist principles that were its hallmarks during the 19th century and before the Stalinist barbarism.
The death penalty in Cuba since 1940
In Cuba, which with the 1940 Constitution declared the death penalty abolished (with the favorable vote of the 6 communist delegates to the Constituent Convention), said the penalty was reintroduced nineteen years later, in the first days of the triumphant Revolution. This, in order to judge and punish the terrible crimes committed by agents of the Batista regime, given the popular indignation and horror at the cruelty of the repressive bodies of the tyranny.
However, in the long decades that have elapsed since then, the necessary revision of the sentence has not taken place, which places us today at the antipodes of the most progressive currents of Criminal Law in the world and of the abolitionist tendencies that have achieved enormous successes in the last fifty years.
In 2017, forty years had gone by since the historic Stockholm Declaration, the first international abolitionist manifesto on the death penalty. In the Declaration, made in 1977, governments were asked to abolish the penalty altogether. According to data from Amnesty International, in 1977 capital punishment was abolished in only 16 countries. By the end of 2021, 144 countries had abolished the death penalty, of them, 108 by law.
The new Cuban Penal Code not only does not eliminate the death penalty, but rather, instead of reducing the number of crimes punishable by it increases them, as well as those punishable by life imprisonment, and exhibits a predilection for a more than a 20-year prison term, which used to be the limit before the penal reform of 1999.
The current Code raises the number of crimes punishable by death to 24 (from 20 in the previous Penal Code, Law No. 62/1987) and to 31 the crimes that can lead to life imprisonment (from 24 in the previous one).
2019 Constitution and death penalty. Disagreements
Punitive cruelty is not justified since Cuba is one of the countries in the hemisphere with the lowest crime rate, and particularly serious crimes, as recognized by all international organizations.
On the other hand, the death penalty is especially difficult to accept given its almost impossible fit with articles 40, 41 and 46 of the Constitution of the Republic.
The first establishes that human dignity is the supreme value that supports the recognition and exercise of the rights and duties enshrined in the Constitution: no greater denial of human dignity is conceivable than executing a human being, even by court sentence.
Art. 41 decrees that the Cuban State recognizes and guarantees individuals the enjoyment and the inalienable and imprescriptible exercise of human rights.
Art. 46 lists the fundamental human rights (which it then develops in the following articles), and the first on the list is the right to life.
In addition, strictly speaking, the death penalty is incompatible with the purposes of Criminal Law, if we except repression — which, on closer inspection, is not an end, but rather a notion inherent to the very concept of Criminal Law, based on the ius puniendi (the right to punish).
On the other hand, the high prison population rate with respect to the total Cuban population can only be explained by the propensity for the excessive use of imprisonment, instead of sentences without internment in penitentiary centers, which better fulfills the main objective: the re-education of the offender and his reincorporation into society.
The refusal to set criminal responsibility at the age of 18 years is also problematic, as established by the International Convention on the Rights of the Child (1989), of which Cuba has been a signatory from the outset.
The new Code, which had the opportunity to eliminate this flagrant contradiction between the international treaty and domestic law, did not do so. The result is that we have spent decades judging minors (as of 16 years of age) as adults, with extreme cases such as those of some adolescents convicted for the protests in July 2021, who received longer sentences than the years they had when they were convicted.
The problem of generic formulations
The description of most crimes, the definition of typical behaviors that constitute crimes, is questionable.
Two old practices are common: the use of generic formulations as if they were descriptions of identifiable facts without further ado, as in the case of the adverb “riotously” — both in the crime of riotous quarrel, adding serious logical error (art. 351.1), and in that of sedition (art. 121) —, whose meaning is so vague that it is really difficult to interpret.
In the most advanced international criminal doctrine, it is usually required, to make up sedition, that thousands of people participate in its execution. On the other hand, in the definition of the criminal type, the use of violence is considered as a constitutive element of the crime, and two paragraphs below, the crime is punished when it is committed without the use of violence, which strictly speaking would not be sedition, but other conduct less serious that would therefore deserve less punitive treatment.
Regarding the definition of contempt, the Code exhaustively lists a series of actions whose performance would constitute the crime, and in order not to miss any, it adds the expression “or, in any way, insult or offend, by word or in writing, dignity and decorum,” which is so generic that almost any conceivable criticism directed at a public official, authority or their agents or auxiliaries, could be understood as contempt.
The following section triples the prison sentence for this crime, also eliminating the possibility of a fine when it is applied to any of a long list of public officials, from the President of the Republic to the President of the National Electoral Council, including intermediate authorities.
This is incompatible with the basic idea of people’s sovereignty: the citizens as a whole (the constituents) hold people’s sovereignty, and the officials are public servants (their leaders). Consequently, punishing the crime with prison sentences of up to 3 years, as if the punishment of the basic figure, from 6 months to 1 year, was not enough, is frankly exaggerated and out of all proportion.
Both cases are just a sample of punitiveness and the commitment to Criminal Law as the main tool to deal with social conflict, which is wrong and, as can be seen, is characteristic of the most conservative, even reactionary, criminal thought, such as symbolic Criminal Law. or the Criminal Law of the enemy, both rightly criticized by lawyers and thinkers as illustrious as Luigi Ferrajoli, Ronald Dworkin, Jurgen Habermas, Eugenio Raúl Zaffaroni and many others.
For all of the above, the Penal Code announces a steep and thorny path for the application of its precepts, with a punitive rigor that sometimes reaches the point of fury and collides head-on with the values and principles of the Constitution, which should be the axiological foundations of their interpretation; that is to say, that the penal regulations must be interpreted by the courts in the light of those values and principles, and in any case preferring, of the possible interpretations, those that contribute to the realization of the constitutional values and principles to a greater extent or that, at least do not diminish or restrict them.
In other words, the process of constitutionalizing Cuban Criminal Law must inevitably 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.
Cuban judges must begin to see themselves, as Martí wanted, as guardians of the Constitution and bastions of the Law, not as obedient officials at the service of the State or power. There, in this transformation of the Cuban judiciary, the future of the Constitution itself and of the socialist State of Law is at stake, which is as much as saying, of Cuban socialism.