In Cuba, new decree gives police the power of judge and jury

Rap lyrics by the Cuban duet “Los Aldeanos” illustrates tensions between the police imported from the provinces and the young people from Havana, mainly blacks and mulattos.

“Hey man, come here and gimme your ID card.”
“But why are you asking me…?”
“Don’t talk back to me, just shut-up, OK? I told you to gimme your ID card.”
“Don’t talk to me like that, bro”
“Listen, keep your hands down! Don’t you wave your arms at me, don’t you wave your arms at me! Just do me a favor and gimme your ID card!”
“But why?”
“Listen buddy, keep your hands to yourself! Don’t wave your arms at me or I’m gonna break every bone in your body!”
“Hey, take it easy!”
“Don’t talk back to me and take out your ID card or I’m gonna take my baton and break your back!”

With the law's enactment at the beginning of October, police officers in Cuba are able to investigate and assess crimes as well as judge and sanction offenders, aggravating security conditions on the island. Many officers are known for the abusive behavior.

Currently, police officers are authorized to request identification and at their discretion, search and/or arrest any Cuban citizen.

With the enactment of Decree 310, as it is known on the island, arrested persons will have to give an account to the police and it is the officer who will decide their guilt or innocence. The police will also have the authority to determine the nature of the crime and if it is punishable with jail time of up to three years. In the latter case, the accused will not be sent to court, but rather be sanctioned with a fine between 200 and 7,000 Cuban pesos.

Attorney Laritza Diversent, an activist of Cubalex, an organization that offers free legal counsel declared to Martinoticias, that the recent amendments to the Penal Code and to the Law of Penal Procedure implemented by Executive order 310 of the State Council, which will go into effect October 1, will aggravate the conditions of security of the citizenship and will increase the likelihood that Cubans’ rights would be abused by the authorities.

She lists the substance of the changes that were implemented. In order to ease the workload of the provincial courts, which are overwhelmed by an increase of criminal activity--mostly illicit economic activities, hoarding, sales without proper licenses, black market activities, etc.– the authority to pass judgment on 78% of all crimes established in the penal code is therefore transferred to the municipal courts.

Meanwhile, police will have the authority to determine the penalty imposed on 53% of criminal activities by applying administrative fines. Only 26% of such cases it will need the decision taken by the officers need be to upheld by prosecutors.

Up to now, the authority of the police to impose fines were limited to violations sanctioned with a maximum penalty of one-year deprivation of liberty. The fines were of 1,000 Cuban pesos with a possible increase of another 1,000, at the discretion of the officer, and according to their assessment of the offender's personal situation.

After October however, the National Revolutionary Police (PNR on the island), will have the power to assess and sanction crimes punishable with up to three-years of imprisonment. In the majority of cases the fines will be limited to 2,000 Cuban pesos, but police will have the authority to increase it up to 3,000 pesos.

If the accused accepts the fine in lieu of a trial, they will be waiving the presumption of innocence, and it is possible that they be pegged with a criminal record. Diversent added that the law offers no further details about the subject.

DRESS HIM IN BLUE AND GIVE HIM A BATON

“The question here is: Are the police properly trained to legally assess and judge illegal acts?” Diversent finds herself asking the same question. In Cuba, a judge or defense attorney has to go through five years of law school to be able to perform that type of work. On the other hand, police go through a short training and graduate with insufficient preparation to manage legal procedures.

Diversent states that in her experience as a pro bono legal advisor with Cubalex, she has seen cases where persons are being fines by the police according to the previous law. This is allowed by Article 8.3 of the legal code, which imposes administrative fines to avoid the counterproductive effects of jailing for short periods of time persons that do not represent any type of danger to society. In many of those cases, however, these persons only knew that they had been “given the 8.3,” but were never told the reasons for the fines or the nature of their infringement.

Regarding the disproportion of the fines, in cases of violations punishable by up to three-year prison terms and/or fines which can reach up to 50,000 Cuban pesos, the new judge/policeman will have the authority to penalize the accused with fines from 500 to 5,000 pesos. The improvised arbiter has the authority to extend the fine up to 7,000 pesos, more than the average worker earns in a year.

A DIMINISHING POPULATION?

One of the objectives of the new law is to send less people to prison and reduce the prison population, which has become extremely expensive and burdensome. It is the sixth largest in the world in relation to the country’s population. Diversent claims that the steep fines imposed, compared to the low income of the general population will push the offender to continue breaking the law just to be able to pay the fines and eventually end up in court. "Once the judicial procedure is in motion, the Supreme Court issues numerous instructions to the Lower Courts to punish severely," she added.

Now, however, if the fine is paid within three-days and the terms of civil responsibility are met, the case is closed without penal consequences. With this amendment of the law, the term to pay the fine is extended to ten-days. The drawback is that in the process, goods and possessions can be confiscated.

The independent lawyer warns that with this new empowerment of the police force, there could be an increase in corruption, which is the basis of many of the illegalities that take place on the island where the policeman could propose issuing a lesser fine in exchange for a bribe.

In the attorney's opinion, the ideal situation would have been to retore the figure of the judge, in order for a legal expert to be the one to assess the crime, with the possibility that the accused –as it should be his or her right – would be counseled from the beginning by a legal representative. This is not considered in the amendment.

Diversent states that in the amendment “the guarantees of due process were not taken into consideration. It is the responsibility of the police to determine if he takes the accused to court or not, as well as the amount of the fine. Neither is the assistance of a legal representative considered under the new law. It is, without a doubt, a very subtle way to violate the right of the accused to be heard in a court of law.”

Finally, Cubalex’s attorney asks why an initiative of this scope was not approved by the National Asssembly, which being the highest legislative branch in the country, did not participate in the legal implementation of “changes and amendments” in the economic and social arena.