On July 11 (J11), 2021, the largest protests since 1959 in the country took place in Cuba; four days after that day, Granma newspaper assured that the behavior committed that day typified common crimes. Specifically, public disorder, attack, resistance, contempt and disobedience were identified.
In contrast, at least 158 people, according to the Justicia 11 website, have been or are being charged with sedition. The Attorney General’s Office declared a total of 790 prosecuted for J11, without specifying how many would be charged for this cause.
Until January 24, 2022, for more than six months after J11, Granma did not mention the concept of “sedition.” In addition, in the recent statement of the Prosecutor’s Office there are novelties regarding what Granma newspaper itself published on the subject in July 2021.
I will refer to three new descrptions that appeared in that note: “in a tumultuous manner,” “serious disturbance of public order,” and “deliberate purpose of subverting the constitutional order.” Before doing so, I will briefly mention the history of the crime of sedition in Cuba, to better understand the problems of its appearance in this scenario.
My interest here is to discuss the relevance and applicability of the sedition concept, in the terms of the Cuban Penal Code and politics, with respect to the J11 processes.
Sedition in Cuban history
Before and during the wars of Independence, a vast crime registry condemned expressions or acts of opposition to “disrupt the seditious works of the separatist people.”1
The Spanish Penal Code in force in Cuba required the presence of a “public uprising” for sedition. For this reason, sentences such as the one suffered by the young José Martí — six years of forced labor — were due to “lack of confidence.”
The word “seditious” was used by the intervening U.S. government (1898) to combat the nascent Cuban labor movement.2 In a rigged trial against the Partido Independiente de Color (PIC), its leaders were tried (1910) “because their propaganda was not only illegal but also seditious.”3 Once the PIC had been suppressed in 1912, four farmers from Güines went to prison for said crime.4
After the Batista coup d’état, sedition appeared, with “relative frequency,” in the Emergency Court of Havana, or as a related crime to condemn revolutionaries. In 1953 the plotting military was tried for sedition.5
After 1959, Huber Matos was sentenced to 20 years in prison, for sedition. In 1999, Vladimiro Roca Antúnez, René Gómez Manzano, Martha Beatriz Roque Cabello and Félix Bonne Carcassés were sentenced between three and five years on charges of sedition.
Then, this has not been a frequent figure in the courts or in the official discourse. It is not found in the Granma archives, nor in the collection of the Revista Cubana de Derecho.6 Those charged with sedition do not appear after the “Maleconazo” (rafters’ crisis, 1994), nor is it mentioned in any of the speeches Fidel Castro gave in August 1994.
The regulation for the crime of sedition in Cuba
According to the Penal Code, sedition is a “crime against the internal security of the state,” of a political nature. Prisoners under that charge can be considered political prisoners, although it is a matter for debate.
The crime is defined in this way: “Those who, tumultuously and by express or tacit concert, using violence, disturb the socialist order or the holding of elections or referendums, or prevent the carrying out of any sentence, legal provision or measure dictated by the government, or by a civil or military authority in the exercise of their respective functions, or refuse to obey them, or make demands, or resist fulfilling their duties…”
The sanctioning framework is very broad. Depending on the conditions, it goes from one year to eight, to 10 to 20 years in prison, or the death penalty. The sentences for sedition that are already known reach the legal limit of deprivation of liberty: 20 years. In the cases that are greater, it must be due to adding related crimes.
The Penal Code regulation presents serious problems.
The first has to do with the distinction with rebellion. In other legal systems — although it is another, technical, subject under discussion — sedition is considered a “second degree rebellion.” Therefore, the penalties are lower.
In Spain, for example, prison sentences for rebellion, depending on aggravating circumstances, range from 10 to 30 years. The Procés sentence (2019) denied the charge of rebellion for the institutional leaders of the Catalan independence movement, and reduced the charge to sedition. The highest sanction, for Oriol Junqueras, was 13 years for sedition plus embezzlement. This, Spain being a negative example in Europe of the sedition regulation.
The Cuban regulation requires, for the description of the crime as rebellion, the use of weapons, but not so for sedition. Then, the degree of violence seems crucial to distinguish between the two. However, the sanction can be the same: “deprivation of liberty for ten to twenty years or the death penalty,” when the sedition occurs “during a serious disturbance of public order”.
During the Chilean social unrest, those who threw Molotov cocktails were sentenced to between 3 and 5 years in prison .7 These sanctions were very low for such episodes of violence, compared to the sanctions of J11, because the framing of similar acts as sedition multiplies the severity of the penalty.
The mere mention of “violence” no longer explains the degree to which it is committed. Public information is needed on the criteria used to define the degrees of violence, and thus be able to assess the proportionality of the sanctions.
The definition of tumult
The Prosecutor’s Office mentions acts committed “in a tumultuous manner” to fit them into the description of sedition. In July 2021, José Luis Reyes Blanco, head of the Supervision Department of the Directorate of Criminal Proceedings, did not use the word “tumult.” Neither did Moraima Bravet Garófalo, head of the General Directorate of Criminal Investigation of the Ministry of the Interior.
At the time, Reyes Blanco explained that the crime of attack is aggravated by the presence of two or more people. In other words, there are legal forms that sanction the gathering of people, and thereby cause damage to people and property, which is not equivalent to “tumult.”
In the aggravated version of the attack, the sanction reaches 8 years. If an act similar to that of an attack is framed as sedition, the sanction is multiplied. In such a case, the choice of penal description may reveal political motivations interested in over-criminalizing.
In any case, it is necessary to clearly define what is meant by “tumult.” Faced with the Procés sentence, experts assured that the “tumult” typical of sedition is only a support of “thousands of people,” who “create altercations,” which give rise to “the normal activity of the group or part of the citizenry being paralyzed.”
Thus, it is a question of massive disobedience and connected to acts of resistance, which manages to successfully paralyze, for a certain period of time, state functions. The Cuban Prosecutor’s Office has not offered data on these matters: the number of people it considered a “tumult” is officially unknown, as well as the amount of the massiveness of the protest in general.8
“Public order” and its definition
Another regulatory problem in the Cuban regulation on sedition is the definition of “serious disturbance of public order.” It is a common issue in Cuban legislation: to take indeterminate concepts as if they were already described facts.
A described act is to attempt against the holding of referendums or prevent the compliance of a sentence, as does the very article 100, but attempting against “public order” is an indeterminate concept, which is “mixed” in the regulation of the Code with described facts. In law, it is not possible to confuse both notions.
Article 100 also mentions “socialist order,” a concept that is even more problematic to define in legal terms. The Constitution regulates rights and duties in relation to public order, not against an ideological program. Furthermore, in 2021 itself, at the official level, there was still discussion about how to “conceptualize” that program.
In the world, the use of concepts open to interpretation, and thus ambiguous, in criminal descriptions correspond to conservative criminal tendencies.9
To avoid major problems with indeterminate concepts, an important part of the international regulations on sedition are concrete and limited in scope, without leaving places as open to interpretation as are the indeterminate concepts of the “public order” description.10
A conflict related to the above is to add to the Cuban causes of sedition the fact of “making demands” on the State. It is a very unique content of the Cuban Code, with scarce parallel in the world.
Another problem refers to the expression of the Prosecutor’s Office on the “deliberate purpose of subverting the constitutional order.”
The “vandalistic” procedure, underlined by the government from J11 to today — also by the Prosecutor’s Office —, may lead to an attack on the constitutional order, but it is a different type of action than the one that supposes “deliberation” to commit a political crime.
In this, it must be demonstrated to the public that the protests effectively responded to an “enemy plan” — beyond the specific events denounced, as payment for actions of violence induced for disinformation —, how that plan had the capacity to organize demonstrations throughout of the country, and how it was successful against the surveillance of State Security and the police forces.
During the same week after J11, the government discourse tinged its descriptions about the protesters, and also placed economic and social factors at the origin of the protests. After that, it launched an intervention plan in 65 impoverished neighborhoods. Such acknowledgment shows, at least, inconsistencies regarding the description of sedition.
The problem of public order, and its democratic protection, is a political issue, it is not made up only with the claim of “normal functioning of the institutions.” Said only in this way, the concept of “public order” that was used, for example, by the Francisco Franco regime would be repeated.
Sedition, political rights and the legitimacy of social protest
The Latin American social outbreaks were presented by the regional right-wing governments as acts of “vandals” and “seditious elements.” They did so claiming external enemies, such as “Venezuelan influence,” or internal ones, such as “subversive” actions.
According to a study published by CLACSO, the actions of the Ecuadorian State in October 2019 showed a “rusty understanding of national security in terms of combating the internal enemy,” and “always ignored the legitimacy of the mobilizations.”
In these contexts, the issue of violence has been brandished as a class discourse to repudiate the consequences entailed by every democratic conflict, and to establish an idea of freedom understood only as security.
Politicizing, making more complex, the discussion about “violence from below” is a need that is as democratic as it is revolutionary. As well as opening institutional and political paths to peaceful protest, and the exercise of the rights of demonstration, assembly and expression.
Characterizing J11 only as an attempt at a “soft coup” closes all legitimacy to the expression of conflicts. The multiple U.S. operations on these events, strictly described as a hybrid war, do not deprive these protests of their popular core with demands for quality of life, freedom, and justice.
The Cuban State must deal with the threat posed by the power of the United States, with its specific project of being an internal actor in Cuban politics, while managing the demands of its citizens. The main field of solutions to this conflict is social and political, not that of the police or State Security.
The future
Various solutions have been given to the specific “problem” of the consequences of social protest. Amnesty is one of them.
In June 2021, Spanish President Pedro Sánchez pardoned the nine prisoners of Procés, with the aim of “opening a new time for dialogue,” a fact that the Spanish right, such as the Popular Party and VOX, threatened to challenge, without success.
President-elect Gabriel Boric has called for amnesty or pardon for Chilean protesters. He did it to “find the best solution that manages to close the wounds.” The right opposes the pardon, and assures that there are no “political prisoners” in that country.
Dealing politically with what is political, making strict use of Criminal Law, amnesty for the J11 prisoners — starting with the 55 defendants aged between 16 and 18 — who have not committed serious acts for persons and property, and reviewing the applied criminal figures, would be part of a path interested in solutions.
According to a study published in Cuba, after “a moment of profound reform towards decriminalization and the reversal of the intervention of Criminal Law in the late 1980s, the trend has been towards criminalization and aggravation of sentences.”11
The new Draft of the Criminal Code contains aspects that reinforce this very negative trend: the sentence for sedition raises the punishable minimum to three years, and increases the maximum to 30 years, or life imprisonment, and maintains the death penalty, a growing rarity in the world.12
The least indicated route to the immediate future of the Cuban crisis is the combination of chronic food shortages, lack of housing, salary and decent retirement, increased poverty, inequality and privileges, with repression and authoritarianism. The democratic defense of public order is not the defense of the principle of State authority, but of the social exercise of the reciprocal rights of freedom and justice.
During N27, filmmaker Fernando Pérez assured that “the new language that Cuban culture needs” was heard there. His phrase could be expanded: the interdependence of rights, and their exercise, is the new language that the Cuban nation needs.
Notes:
1 Within the independence camp, the actions against the Republic in arms were also called sedition, such as Lagunas de Varona (1875) and Santa Rita (1877).
2 La Discusión, September 27, 1899.
3 The indictment later changed that crime to “conspiracy to rebellion.” Rodriguez, Rolando (2010). La conspiración de los iguales. La protesta de los Independientes de Color en 1912. Havana: Imagen Contemporánea, p. 138
4 Helg, Aline (2000). Lo que nos corresponde. La lucha de los negros y mulatos por la igualdad en Cuba (1886-1912). Havana: Imagen Contemporánea, p. 293
5 These data appear in an ongoing investigation by Amalia Pérez Martín. She generously shared this data with me, for which I thank her.
6 I consulted from 1972 to 2011.
7 There is nothing to celebrate in the actions of the Chilean State during those days, responsible for more than 30 deaths, thousands of injuries and detainees, and violations of rights, including many violations of due process.
8 Inventario, an unofficial data journalism website, constructed a map of the protests.
9 “Las Tendencias del Derecho Penal moderno. Breve acercamiento a la legislación penal cubana,” (2017) in Reflexiones desde la toga. La justicia penal en Cuba. (María Caridad Bertot Yero Coordinator), ONBC Editions. ISBN: 978-959-7234-63-0.
10 Here are some examples. To describe as sedition, in Spain reference is not made to political objectives, but rather to prevent specific state functions. In Ecuador, military or police officers are sanctioned. In Panama, whoever “uses the armed forces or usurps their powers, takes command of the troops, plazas, public security posts,…” In Mexico, those who “resist or attack the authority to prevent the free exercise of their functions.”
11 “Las Tendencias del Derecho Penal moderno. Breve acercamiento a la legislación penal cubana,” Ob. Cit.
12 After three sentences carried out in 2003, there is a moratorium on capital punishment in Cuba. That was the last time the death penalty was applied in Latin America.
Author
Julio César Guanche
