Arturo Mario Fernández Díaz (Sagua la Grande, 1958) graduated in Law from the University of Havana in 1981. He has taught Civil Procedural Law, Obligations and Contracts and Commercial Law at the Marta Abreu University of Las Villas, and at its alma mater. He is a full member of the Cuban chapter of the Andrés Bello Association of Franco-Latin American Jurists and external consultant for the Cuba area of the HISPAJURIS, A.I.E. Association of Spanish Lawyers
How do you evaluate the Cuban population’s level of legal training/information?
I remember a former Cuban minister of justice who said, more or less: “Here everyone is a judge, arbitrator and umpire at the same time.” He was right. But it is one thing to have an opinion on something, even from ignorance, and another to have a legal culture, understood as the ability to interpret and describe legal norms.
In the latter there is an appreciable gradation, which leads me to estimate that, in the matter of legal training-information, the result is irregular.
In the first place, there is the group of legal professionals in all its meanings, who in each of their fields of actions operate as conscious trainers of legal culture, and transfer their knowledge.
Another, very important part is the media, sometimes with not as much systematicity as is required, as happened with the process of the last constitutional referendum, for which there was an informative display of the potential norm. This continued after its approval, in the face of the complementary legislation that supports it, but some of the purposes undertaken are missing, such as that program “Al Derecho,” which illustrated and reported daily cases where many citizens were represented.
I think there is a majority of the population that does not have basic or related legal information, something that, although formally resolved in the law (under the principle that ignorance of the norm does not excuse its compliance), does not exclude the existence of that reality. You have to be where legal consultations on different matters are attended to in order to conclude that there is a lot of ignorance.
Should any subject be incorporated into the general study curricula that will help citizens to know their duties and rights?
Any effort in that direction would be little. No one is as free and effective in their decisions and actions as when they are convinced of the legality of their actions.
For example, associated with certain subjects that are taught with civic content, I believe that the initiation of this topic can be done. Just as national symbols are taught, the fundamental rights and duties that, as citizens, they have or will have in the future, in the case of minors, can be taught. Even as teenagers, I am of the opinion that some legal issues would serve to better target their sometimes erratic behaviors.
I always cite the example of the times that I have warned young people when they turn 16 that to marry at that age they need their parents’ authorization, but they are criminally responsible, so they can commit an act thinking that they are “boyish things,” when it is actually a crime for which they will be tried.
As a jurist, did the last Constitution of the Republic of Cuba satisfy you?
I have learned that, most of the time, we cannot pretend to be the best of worlds, but we can expect the best of worlds within reach.
If I fixed any concept in my increasingly distant studies of the Law career, it was that the Constitution is a political phenomenon, and only derivatively legal. Therefore, any dissatisfaction that, in the conceptual or formal order, I have as a jurist, I must always compare it with the political intention that the constitutional norm has, as it happens with any norm of that rank in the world.
In turn, it is a Constitution approved in a referendum, with which it was sanctioned in said consultation, so any criteria on it would be something anecdotal.
What aspects of reality do you think are most unprotected from a legal point of view?
In legislative matters, my thinking is rationalist. The fact that something is arranged does not imply that the right that is intended to protect is safe, especially when reality, sometimes the harsh reality, is responsible for breaking the rule without consequences for the offender. It is something that has haunted us as a nation, since the colonial period, in that area of interrelation between law and reality. Obviously, there are many pending issues to be resolved, not so much by better legislation, but by a strict and consistent application of the current one.
I believe that, in matters such as consumer protection, civil liability and insurance, there is still a long way to go to obtain effective protection. Also, as was promoted in the debate on the Constitution, to make viable the right of defense of the accused from the moment of his arrest. This requires modifying the instrumental order of the criminal process, which will mean, in turn, ending the so-called inquisitive phase of the current procedure.
There is also the issue of immigration regulations, still attached to fatal terms that collide with citizens’ freedom to travel. After a long period of coexistence with the exit permit and the limit of one year of authorization to stay abroad for personal reasons, the first one was abolished with an authorization in the current passport, extending the allowed limit to being two years abroad. I believe that this continues to be an anachronism, since it is not justified in the face of the international pacts signed (although not ratified) by Cuba and, most importantly, it does not respond to the feelings and interests of the majority.
In the universal imagination, lawyers are seen as profiteers, ruthless and deceitful. What do you think is the perception of our population about lawyers?
It is true that, in some contexts, more than we would like, there is a certain unfavorable perception of the role of lawyers in their professional performance, which has also been influenced by a picaresque view not without exaggerations.
When you undertake a litigation in which you represent and defend interests opposed to that of the adversary, there is a high probability that one of the parties will be harmed or not achieve what was intended. Hence then comes the tendency to blame the lawyer, as well as the judges, giving rise to not a few speculations about the ethics of the first and the venality of the second, more out of impotence than conviction.
There are also colleagues who have been in charge of discrediting our profession. However, I have the experience, lived in Spain, of lawyers who denounce before their College the improper behavior of some lawyers, without causing dissent in the rest. On the contrary, there is a consensus that it should be this way, as a resource to keep the environment clean.
Let us remember that the lawyer-client relationship is, above all, a bond of trust in which ethics and good practices are essential for the professional’s accreditation.
In the Cuban case, lawyers, according to the specialty of the subject they deal with, are required and even well accepted. There is a situation attributable to excessive bureaucracy, especially administrative, which sometimes negatively influences their performance, which is not well seen by the client and can be attributed to some incompetence, but in general I think the acceptance rating is quite high, in addition to being necessary in many circumstances, some even unwanted.
What is the difference between presumption and conviction? Does the presumption have greater weight in the Cuban legal system than in other countries?
First of all, I don’t think they are conflicting concepts, so setting differences is perhaps not the best way to relate them. Nor do I consider that in Cuba there is more or less relevance on presumption in relation to other countries; it simply has what your national legislation provides for this issue.
In Cuba, as in many national legal systems, there are assumptions of presumptions, starting with the legal calls, because they are thus provided in the internal regulations. In our case, there are examples of presumptions such as that of good faith for legal acts in civil matters, that of paternity of the procreated child during the marriage, the Family Code, and also those referring to factual situations, such as the presumption of death in the Civil Code. Together, they set specific terms to describe them.
With constitutional rank there is a very important one, the presumption of innocence, based on the millenary principle in dubio pro reo, the one that guides that, in case of doubt―a question that has to do inescapably with the conviction of the responsibility of the accused―what is most favorable to the offender must be chosen. Although this principle is universally accepted, practice has shown that it is generally one of the least applied.
Presumption is also present in the instrumental order. Our civil procedure legislation, supplementary to other matters, regulates presumption as a means of proof, providing that those considered by law exempt the person favored by it. Also, in a similar sense, it establishes that notorious crimes, due to their publicity and evidence, are appreciated without the need for proof.
There are unique assumptions of presumption. For example: Spanish legislation contemplates the so-called “comorience,” consisting of a legal fiction used in the event that two people called to succeed each other die without being able to determine who did it first. In that case, both are presumed to have died at the same time.
We can consider the presumption, in any of its modalities, as a factor that serves to structure the conviction that can be reached about a certain case. In this line of reasoning, it is the evidence that acts as the mechanism to establish the conviction about a fact or object of debate, in a judicial process.
An issue necessarily linked to the conviction is the assessment that the judge can make of the facts that are submitted to him. This is influenced by the intellect and the conscience of the judge. The mechanism, in turn, requires the guarantee of impartiality and independence so that the judge can arrive, freely, at the reasoned conviction of the case judged. As you can guess, there is an important subjective load in this entire structure and an insurmountable casuistry that often casts doubt on it.
The civil procedural law in Cuba, regarding this mechanism, expressly states that the Courts, to issue their sentences, will assess the evidence according to the value that the law confers on each one. They will in any case conform to the principles of reason and science. This tells us, on the one hand, that the value of the evidence is the principle that governs the content of the process, and on the other, that the assessment that the judges will make of the evidence, understood as the process through which they form conviction about the controversial fact, will not be free, if not with attachment to the enunciated principles of reason and science. This is also not exempt from a certain indeterminacy, especially as regards reason.
In all admissible areas, what I consider connects with both concepts, presumption and conviction, is the question of guarantees. I am convinced that the increase in guarantees is the best resource to guide the decrease in arbitrariness.
Nor can everyday life be ignored to appreciate the presumption in its purest form, sometimes for the worse and unjustifiably, since that is how it works at the level of the psyche of the public servant. This unfounded action, or better, prejudiced and almost instinctive, sometimes without correspondence with the law, is due in large part to the non-observance of the existing guarantees or their lack.
To cite a vulgar example, it may happen that an officer of the law considers it appropriate to detain a driver of a vehicle for transferring passengers to the airport on time, under the estimate (which is a presumption) that he is committing an irregular act and imposes an administrative sanction. In addition to what may be regulated in the matter, the commonality of this act reflects the assumption of the presumption against the alleged offender as a form of thought, which leads me to the issue of the actor’s ability to assess, his intellect and conscience, associated with the system of guarantees that the accused has. It is a delicate and complex subject, because it will always depend on the acting subject.
What is justice?
Perhaps I have a definition of injustice first before justice. During my career, I heard the anecdote of a student who, in another time, offered amusing answers to two questions in an exam: “What is the Law? What the King says”; “What is custom? What the crowd dictates.” I don’t know what I would have answered for the concept of Justice; perhaps “what is not filth.”
On the other hand, there is the old dichotomy between justice and legality. The law can be applied, even if it is not or seems fair, or something may be fair without adherence to the law, which seems to me typical of a conversation between Don Quixote and Sancho.
The exercise of giving a definition of justice does not seem to me to be a viable endeavor. It is also a very handy term, with its additions, as social justice, that it remains more and more in the conceptual and theoretical plane than in a tangible argument.
What I can tell you, based on my experience, is that it can make existence agonizing when it is searched and cannot be found.