The Cuban Constitution of 2019 dedicates articles 94 and 95 to the regulation of the right to due process. Both articles contain the essential foundations for Cuba to have the “right to due process” in accordance with the most advanced international human rights doctrine and standards.
The origin of the right to due process of law is found in Anglo-Saxon law and dates back to the English Magna Carta of 1215, which states that no free man may be detained, deprived of his rights or property, or outlawed, or banished or deprived of his rank, nor may force be used against him except by virtue of a court ruling or by the law of the kingdom. [1]
The Constitution of the United States of America lays the constitutional basis for due process in Amendments V and XIV, which have subsequently had extensive judicial development, taking into account the Anglo-Saxon law system in force in that country. One of the most well-known aspects of the right to due process in the United States is the one known as the Miranda Rule or the Miranda warning or rights, in which the authority arresting a person is obliged to say the following: “You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.” This rule was established by the Supreme Court in 1966, in the Miranda vs. Arizona case, for which Ernesto Miranda had been convicted only on the basis of his statement obtained under police pressure. [2]
In the same way, the right to due process has been widely regulated by the most important international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the American Convention on Human Rights, just to mention three of the most paradigmatic.
Undoubtedly, the new constitutional regulation of due process is a qualitative leap with respect to the text of the 1976 Constitution, and the required reforms to the laws in force must be made as soon as possible to bring them to the level of the new Constitution.
In this article I will only make reference to the aspects that I consider should be modified in criminal laws:
- Access to legal representation: The Criminal Proceedings Law regulates in its article 249 that the accused will only be part of the process and appoint a lawyer once a preventive measure is issued. According to the same law, the process for issuing a preventive measure can last up to 7 days, so the person could be detained for up to 7 days without having access to a lawyer. In this regard, the right thing to protect the rights of the detainee is that he can have access to a lawyer from the moment of his arrest.
- A person’s time of detention: Articles 245 to 249 of the aforementioned law establish the terms of detention, which are up to 24 hours by the police, up to 72 hours by the instructor and up to 72 hours by the Prosecutor, which is why a person could be detained for up to 7 days, the same amount of days that coincide with their not having legal representation. The solution to this situation would be to have access to your lawyer from the moment of your arrest, and that the preventive detention time be reduced.
- Habeas Corpus: The Habeas Corpus in Cuba has poor regulation, which makes its application almost useless. In Cuba’s Report to the Universal Periodic Review of the Human Rights Council [3] it was reported that from 2010 to June 2017, 156 habeas corpus processes were processed and 8 were declared in place, which is approximately 22 habeas corpus annually and in place around 1 per year. The problem is in the way that habeas corpus is legislated, which makes it almost impossible for such a process to prosper, because it is the Prosecutor’s Office, and not a judge, that imposes the provisional prison measure. In all the habeas corpus processes, the Prosecutor’s Office is a party, so knowing that a process of this nature has been initiated, the provisional detention can be ordered, another preventive measure can be issued or the detainee released.
- Empowered authority: In Cuba, the provisional prison measure is imposed by the Prosecutor’s Office, which in turn is the one that carries out the criminal action on behalf of the State. This type of measure, which is the most severe of the preventive measures, should be imposed by a judge in a process where the detainee is represented by a lawyer.
- Prisons Law: Cuba does not have a prisons law, the provisions that regulate this activity are internal regulations of the Ministry of Interior, which are not public. It is imperative to have a prisons law that regulates aspects such as the rights of detainees, communication with their family, the records that must be kept, how the integrity and privacy of detainees are protected, what the prison regimens are, among other aspects
These days, the specific case of Cuban opponent José Daniel Ferrer, a prisoner in Cuba since October, has been publicized. I lack all the elements to be able to judge whether the Cuban authorities acted in accordance with the laws, but I don’t doubt that taking into account the political relevance of this person, all procedures have been followed as regulated.
If so, this did not prevent the case from gaining international attention and there were statements asking the Cuban government to guarantee Ferrer’s physical integrity. We can assume that this is part of the campaigns against the Cuban government that are made with the objective of producing a regime change in Cuba, but I think the most important question is whether all this could have been avoided.
To answer this, I will not enter into the substantive discussion about whether the Cuban government should legally recognize the political opposition, because it is not the objective of this text. I will focus only on the principles of due process.
The way to avoid any campaign or manipulation, if any, is to create a rule of law that guarantees due process.
In that sense, all detainees―as is the case of Ferrer―should have access to a lawyer from the moment of their arrest, all interrogations should be in the presence of a lawyer, the preventive measures should be issued by a judge and not by the Prosecutor, the forms of communication of the detainees with the family should be clearly established, the records of the detainees should be made public and family members have easy access to them. In addition, as stated in point 25 of Cuba’s Report to the Universal Periodic Review, cited above, the authorities must maintain rigorous control to prevent persons deprived of freedom from hurting themselves. [4]
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As Martí expressed and our Constitution established as the first law of our Republic the cult of Cubans to the full dignity of man, this is not complete until we have a due process that guarantees all rights. As Mandela said: “It is often said that nobody really knows what a nation is like until he has been in one of its prisons. A nation should not be judged by how it treats its citizens with a better position, but by how it treats those who have little or nothing.”
Notes:
[1] The Magna Carta (The Great Charter). Consulted on December 15, 2019.
[2] Ernesto Miranda was subsequently sentenced to 11 years in prison, in a new trial with new evidence and witnesses.
[3] National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21. Cuba. Consulted on December 17, 2019.
[4] Idem.
Authors
Michel Fernández Pérez,
michelfernandez
