The events of July 11 in Cuba have caused an outpouring of analysis, narratives, interpretations and repertoires of departure from what has been the largest public protest in revolutionary history. From coinciding and conciliatory approaches, materials that capitalize, distort and dispute what happened, to polarized, irreconcilable and confrontational positions.
The legal analysis of the lawful response given by the Cuban State and the invocation of various legal alternatives to the prosecution of the protest has also shaped the map of what has been written about J11. And that’s how prolific and varied Cuban society is today, and so the voices of those who took to the streets of the island that hot Sunday in July.
Demonstration as a right
The Constitution of the Republic recognizes the right to demonstrate for lawful and peaceful purposes and with respect for public order (art. 56) and, in turn, obliges the State to recognize, respect and guarantee freedom of thought and expression, noting that conscientious objection cannot be justified to evade compliance with the law (art. 54).
There are several legal elements to take into account and that are combined with the events of July 11 in Cuba. One of them is, indeed, that Cubans can take to the streets to demonstrate as long as it is peacefully and with respect for public order. The second, that the legality of the protests cannot be verified due to the absence of the secondary law that regulates the right to demonstrate.
At the same time, respect for public order may contradict the interpretation of some elements that typify the crime of Public Disorders regulated in the current Penal Code (arts. 228 to 230) due to the very nature of the right to demonstrate. For example, article 228 expresses, among other actions, that the crime can be committed by anyone who, in public places, carries out any act that causes disturbance. In section 230 it is established that the crime is also classified if the tranquility of the neighbors is disturbed with annoying or unnecessary noise. In peaceful demonstrations people can chant slogans that call for the participation of more protesters, cause noise, crowds, and loudspeakers and drums are often used.
In fact, penal theory considers that the right to peaceful demonstration must be weighed against the legal right that protects the crime of public disorder, which is none other than good coexistence, citizen tranquility and social peace. That is, it is necessary to establish a balance between the possibility of exercising the right to demonstrate publicly and the right to social peace, for this it is important to weigh both rights at a given political moment.
If we consider what is stipulated in the crime of public disorder as a whole, the right to demonstrate peacefully would be significantly disqualified.
Again, the articulation of this right in a secondary law would avoid the distorted application of the criminal law.
However, the State is obliged to guarantee freedom of thought and freedom of expression within the framework of a demonstration or outside of it, since the human rights regulated in the Magna Carta are interdependent.
Despite all of the above, in the July 11 protests there were violent actions against property (public and private) and against people despite the fact that, based on the videos broadcast live, many marched peacefully. And it is here where the right to protest finds its limits in an imponderable way. Causing fights or altercations, using weapons or explosive materials (public disorder, arts. 228.2 and 229), causing injuries and damages are actions that are unprotected by the constitutional text.
Compared to other protests that take place in Latin American and Caribbean countries, such as roadblocks called by the unemployed workers movements or the picket-line movement that demand specific economic-social objectives, the J11 in Cuba was not called by any articulated organization nor did people take to the streets to claim a particular issue. The expressions were of general malaise, disagreements with the government’s management, which caused a “domino effect” from San Antonio de los Baños where they started, followed by Palma Soriano, to different places in the rest of the country. Although there were also people who capitalized on the circumstances and carried out actions pursuing a political agenda of destabilization, delegitimization and chaos.
The choirs asking for food, medicine, freedom or “we want a change,” not only speak of violated political and civil rights as many media want to emphasize, they also show a dissatisfaction of basic needs in the framework of a socialist State, a weakening of the satisfaction of economic, social and cultural rights, also considered as human, although historically relegated by the preeminent liberal influence as “second and third generation,” despite the fact that the 1993 Vienna Convention considered that all rights would have the same hierarchy .
It is important to remember that the Economic Reorganization in Cuba, not only had a unfavorable impact on the capacity of salaries (which had already been impoverished for several decades), the possibility of consumption, access to goods and services, even the real economic possibilities of the private or self-employed sector (including the absence of labor rights), but also affected access to culture and recreation, for example, the prices of tickets to go to the movies, theaters and other arts and entertainment events, rose considerably.
Housing, with a housing deficit of 929,695 and with 39% of all homes in fair and poor technical condition, is another of the social rights that have been impoverished. The shortage of medicines had been hitting the country for several years before the pandemic due to the economic blockade, non-payment of suppliers and the black market; with the arrival of the coronavirus, the shortage worsened. Sexual and reproductive health has also been affected in recent years, the crisis of condoms and sanitary napkins account for this. Classrooms have been closed for more than a year due to isolation measures, and although this is not a structural scourge, the collective perception is that home schooling has become exhausting and of poor quality.
If we go into the population sectors that are most affected by these rights, we can refer to Afro-descendant people, trans people, women especially intersected by skin color, territory, age, territorial origin and social class, people with informal jobs, low income, etc.
The demonstrations, then, were also due to a weakening of economic, social and cultural rights, and these have been the fundamental pillars of the Revolution.
The right to peaceful demonstration is a political right that enunciates in itself all the others, I reiterate the interdependence between one and the other, with the emphasis that, in addition, this and the economic, social and cultural rights entail something of great importance and is the community. It is a right that allows the collective claim of unsatisfied non-individual rights that respond to basic needs essential for the development of a dignified and adequate life.
Judicial processes as a way out of the conflict?
As a result of the physical confrontations, violent actions, damage caused to public and private property, as well as the injuries that were caused in the framework of the protests, the Cuban State began a process of prosecution against the protesters.
Although the term criminalization is the one most used by the media, it does not imply, in strict terms, judicial processes as a final result. The first covers repression, arrests, intimidation from law enforcement officers of a State, and the second is the conclusion of the process in criminal courts. The judicial process means the displacement of the resolution of the social conflict towards the criminal jurisdiction. This shift from the social area to the criminal branch simplifies the magnitude of the collective problem to the response of the judicial apparatus to one or several specific individuals.
The containment of the social conflict finds no other way out than to assimilate the protest as a crime, and the narratives that are offered around it will be related as crimes and for this a subject is needed: the offender.
However, it is worth asking, how is it possible to resolve the causes that led to taking to the streets through criminal proceedings?
The Cuban state itself has communicated that up to now 62 people have been criminally prosecuted, 54 of them for public disorder and that only those who have attacked authority, against civilians or against property would face the Cuban courts. If we read the articles of the crime of public disorder, we will realize that damages or injuries do not incur as typifying elements.
If those actions classified as crimes that have been carried out against the officers, persons or property are not being condemned, then what is being condemned? The right to demonstrate? The protest? If those who took to the streets are people whose economic, social and cultural rights (food and medicine) are not satisfied to the point of demanding them publicly, who are being prosecuted? Within the framework of the crime of public disorder (which has been the most prosecuted so far without causing damage and injury) and in the interpretation of the lawsuits, who are the “criminal” subjects? Impoverished people, affected by inequalities and by social markers of historical behavior that structurally shape patterns of discrimination? Where are the protesters located, to which territories are they anchored, under what conditions? How are poverty and the class question understood in J11 and in the subsequent judicial process?
The reiteration of descriptions such as “criminals,” “marginal,” “scoundrels” in the mass media to refer to the people who came out to protest in the Cuban streets, show that, in effect, they were marginalized people, excluded, from low social strata, people who live on the periphery of a socialist state who mostly claimed the Cuban state in public space. The demonstrations were visibly marked by racialization, poverty in its multidimensional sense, by social borders. But, in addition, it accounts for the classist, stigmatizing and simplified reading that has been given to J11.
I have no doubt that it is necessary to prosecute those who caused damage and injuries in respect of the provisions of the Constitution. However, and according to different testimonies and/or graphic evidence, not all the people who are being detained and criminally prosecuted in Cuba violated the peaceful nature of the protests. Likewise, not all the injuries were caused by civilians, there have been cases of police abuse and excess that, in all fairness, should also be prosecuted.
Investigate and make transparent
There are several videos that show the disproportionate use of police force when arresting some protesters or containing violent actions. Testimonies have also been published where police abuses have been denounced once they have been deprived of liberty and made available to the authorities in places of detention or penitentiary establishments. Others report violations of due process (articles 51, 94 and 95).
Faced with this, the Constitution again endorses that, if the organs of the State or their officials violate the constitutional rights of a person and, consequently, is caused damages or losses, the latter may claim the restitution and reparation of his rights before the courts, according to law. Once again, the law that guarantees the exercise of this right is not articulated.
Based on the testimonies that circulate on social networks and non-state digital platforms, the most repeated complaints are related to: the lack of notification to the relatives about the whereabouts of the detained person during the first hours or days and the lack of notification of the crime that is imputed to the accused person. In more specific cases, reference has been made to overcrowding in detention cells, inadequate care for patients with COVID-19, abuse, mistreatment or degrading treatment (nudity), even with biases of homophobia, transphobia, racism and sexual violence.
Faced with all these irregularities and alleged violations, it is important to appeal to the State institution whose purpose is to ensure the legality and rights of persons deprived of freedom in detention cells, dungeons, prisons, etc., which is the Prosecutor’s Office and its department of Control of Legality in Penitentiary Establishments (CLEP). These prosecutors have the mission of enforcing the procedural terms of the detentions and everything related to due process (notification to family members, notice of the crime, medical attention, legal assistance, overcrowding, physical conditions of the cells and rights of the inmates in general).
The functions of these specialized prosecutors take on vital importance after the events of July 11. At the same time, it is essential to investigate and verify the testimonies that refer to abuses by law enforcement officers.
In fact, in Cuba’s Report to the United Nations Committee against Torture of 2018, reference is made to the creation of commissions of investigation in the event of the possible involvement of officials or officers of the authority when detainees report having been injured or mistreated from the moment of their arrest. For this, the Prosecutor’s Office is informed of the facts and it is this instance that will demand administrative measures or criminal responsibility of those involved, as appropriate (Point 27).
The same Report gives an account of the obligations of the police at the time of arrest and after it: to report the reasons, the rights of the detained person, to issue a Detention Record stating the time, day, place and crime, which must be signed by both parties, inform of the arrest and the place where the detainee is held, and facilitate communication with next of kin (Points 15 to 18).
If the person enters the detention cells presenting injuries, then the police are obliged to request from the corresponding physician the Certificate of First Intent Care of the injured person (Point 24).
Considering the above and the unprecedented nature of the protests, but also the unprecedented response of the State, it is important to create special commissions that can be chaired by the CLEP department of the Prosecutor’s Office for the investigation of the testimonies due to their legal domain, but at the same time that its composition be plural: State institutions such as the Ministry of Justice, members of the National Union of Jurists of Cuba, internal NGOs such as the Martin Luther King Center, recognized individuals from Cuban civil society, journalists, CENESEX, UNEAC, political and mass organizations such as the FMC, the UJC, the FEU, the CDRs, the CTC, etc. These commissions will be able to make their procedures transparent, publish the actors that compose them, receive, process and resolve related complaints and also establish appeals against certain processes and challenge decisions.
Although there are procedures in Cuba through which to channel the citizenry’s disagreements and the right to complain to the authorities, the very fact that there has been an J11 gives the measure that the demands in the institutionality are not working and, if an adequate response is achieved, this is personal and individualized, social and collective treatment is unattainable, so the established channels assume the fragmentation of demand and social complaint, and imply the compartmentalization of the response.
Hence, the creation of commissions in this unprecedented situation makes it possible to clarify conflicts that transcend the individuality of a specific case and encompass a possible collective and group dimension in situations of violation of rights and, consequently, solutions and preventive and repair regulations can be designed that last a long period of time.
On the other hand, the Prosecutor’s Office is the State institution that by constitutional mandate ensures compliance with the law and in turn is the one that exercises criminal action. Both missions run the risk of being contradictory and counterproductive due to their capacity as judge and party. Hence the possible feasibility of special, plural commissions guided by its department specialized in prisons and in the rights of inmates.
However, the Prosecutor’s Office has attended to 215 people regarding the July 11 events, of which 47 established claims. It has also recognized that the complaints have come from all the provinces of the country and that the main disagreements have been related to alleged violations of due process: ignorance of the place where their relatives or friends are detained, the place of detention, duration of the arrest, the crime for which the detainees are accused, etc.
The institution also reported that there have been complaints corresponding to criminality such as being present at the place or recording, and others regarding the manner in which they were arrested.
Also of importance is the publication and transparency of the detained persons and the crimes charged. This type of report is not new in the country because during the initial months of the pandemic and the implementation of social distancing measures, the Prosecutor’s Office and the Supreme Court appeared on television to report on the number of people prosecuted for violating the health measures implemented, in total numbers and broken down by types of crime.
Through official voices there has been mention of hundreds of people arrested, dozens of people injured and 62 prosecuted. Although the data are imprecise, it is clear that hundreds of people (subtracting 62) will be prosecuted through ordinary criminal proceedings for crimes more complex than public disorder and that exceed the penalty of 1 year of deprivation of liberty. That is, with greater severity and, it is inferred, than for more serious crimes.
It has also been reported that of the 62 people prosecuted, 22 were assisted by a lawyer, although 45 appealed and only 1 was acquitted. The low number of people who were defended by a lawyer contrasts with the high number of appeals. This disproportion must be taken into account during the appeals and, in addition, I agree with other jurists in assessing the figure of the definitive dismissal (file) for those people who, in effect, did not exercise violent actions.
The experience in Latin America and the Caribbean
Several digital platforms after the initiated judicial processes and the alleged violations of the rights denounced, have come to ask for solutions such as the creation of a Truth and Reconciliation Commission.
For this type of proposal to be useful and effective, first they have to be in accordance with their legal nature and, secondly, they must be grounded in a context and historical analysis that allows articulating a meaning.
The Truth and Reconciliation Commissions arise as a result of peace agreements or transitional processes in countries that have experienced military dictatorships, authoritarian regimes or internal armed conflicts towards democratic regimes or towards peace. They have the mission of investigating violations of Human Rights and International Humanitarian Law, but also of attending to disarmament processes, of demobilizing and reintegrating armed groups, and of creating national reconciliation and reparation strategies as fundamental lines of work of the Commissions.
Paradigmatic examples are Argentina (due to the civic-military dictatorship from 1976 to 1983 the National Commission on the Disappearance of Persons was created), Peru (due to the armed conflict between 1980 and 2000 the Truth and Reconciliation Commission was created), Chile (due to the military dictatorship from 1973 to 1990 the National Commission was created), Colombia (due to the armed conflict in 2017 the Commission for the Clarification of Truth, Coexistence and Non-repetition was created), El Salvador (for the 13 years of civil war, the Truth Commission was created in 1991), Honduras (after the coup provoked by President-elect Manuel Zelaya in 2010 the Truth Commission was created) and Guatemala (due to the civil war that lasted 30 years, the Commission for Historical Clarification was created).
In the case of Mexico, a Truth Commission was created for the case of the 43 disappeared teachers from Ayotzinapa, a case that merited the intervention and investigation of the Argentine Forensic Anthropology Team and the Interdisciplinary Group of Independent Experts, sent by the Inter-American Human Rights Commission.
For the Cuban case, with a sadly deceased person, with dozens of injured protesters and police officers, with the count of a one-month police action, and taking into account the nature of the Truth Commissions, the facts and experiences in the countries of our region are not applicable in the case of events such as the J11.
However, I reiterate, together with other Cuban specialists in Human Rights, that jurisdictional institutions such as protection and guardianship should be created, and in turn other semi-jurisdictional instances such as human rights commissions or the ombudsman’s office.
The ombudsman’s office is in charge of ensuring the promotion, exercise and dissemination of human rights and also handles claims or complaints about threats to or violations of human rights and violations of international humanitarian law by police agents or public servants. They can generally establish actions and appeals in the ordinary courts and in the Supreme Courts.
In the region there is experience on this in Mexico, Brazil, Colombia, Argentina, El Salvador, Ecuador, among other countries.
The State, the conflict and citizenry
Ernesto Laclau and Chantal Mouffe have approached, from a critical perspective to Marxism, social conflict and antagonism as phenomena of permanence, impossible to overcome. In this sense, creating institutions that promote permanent democratization without all of them being reduced to individualized attention to a demand, will allow the absorption of the conflict as part of the governmental exercise. In other words, the collective, dynamic and articulated exercise of rights by plural and diverse citizens is of vital importance.
The approval of the secondary laws that articulate the spirit of our new Constitution does not allow any further delay. The Law to claim constitutional rights before the courts has already been postponed twice due to the pandemic, however, other bills have been published. Regulating the right to public demonstration and the right of association, just to give two examples, are part of the map of legal solutions.
Regaining trust in Cuban institutions is another goal necessary to achieve quickly. One of the pillars for this is transparency, others popular control, national dialogue, municipal autonomy. The grassroots work of the political and mass organizations requires greater articulation, organicity, mainstreaming and intersectionality. Economic reforms must be accompanied by public policies that focus on vulnerable and impoverished populations (and not only in a welfare way).
The distribution of food and medicines should try other routes than the endless lines, especially for the elderly and families in a precarious situation.
Criminal law, the purpose of sentences and the principle of re-socialization should be rethought. Insisting on the fact that the severity of the sanctions does not create better sanctioned persons or better societies, and I am referring to the long sentences of, but also those of very short duration whose re-socialization is questioned. To always consider that they be subsidized without measures of deprivation of freedom and empty the prisons of people criminalized for being poor, black or “dangerous.” The Penal Code is also about to be approved.
Protest is a legitimate right that is intertwined with others, it is a right that arises mainly from those groups that did not find an answer to the dissatisfaction of their most vital rights.
Interpreting J11 also from this angle is fair for a people that has been able to resist external aggressions, economic and financial blockades, terrorist actions, crises, shortages, errors and shortcomings of state officials for more than 60 years.
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Note: This text was originally published on the blog Lo personal es político, OnCuba reproduces it with the express authorization of its author.
Author
Alina Herrera Fuentes
