Articles in the Proposed Penal Code Subvert Cubans’ Rights

HAVANA TIMES – The draft version of the new Cuban Penal Code affirms that the State, the Government and the Communist Party (PCC) stand above the Cuban people. It also protects regime followers who participate in the repression of dissidents and critical citizens, and shields Castroism and its institutions from possible expressions of popular dissatisfaction. If approved, the code would mean a step backwards in terms of rights for Cubans. We analyze 14 articles that demonstrate this.

Article 19, on juridical persons, establishes that criminal liability is enforceable against non-State entities, but excludes “political, social and mass organizations recognized by the State, in accordance with the Constitution of the Republic of Cuba and other laws.”

Article 23.5 establishes that “a person acts in legitimate self-defense when he prevents or adequately repels a danger or imminent or actual harm to the peace, or to the property or social interests of the State.”

These people are exempted from criminal liability, which eliminates any future possibility of prosecuting those who harm Cubans protesting against the regime, as occurred on July 11, when “revolutionaries,” in response to Miguel Díaz-Canel’s call, assaulted demonstrators.

If these “revolutionaries” go too far “the court may reduce the sanction by up to two thirds of its minimum limit,” and if it concludes that “this excess has been committed because of excitement or violent emotion incited by the aggression, it may dispense with imposing any sanction,” the Article states.

Article 24.1, on the state of necessity, absolves of criminal liability “whoever acts in order to prevent an imminent danger that threatens his own person or that of another, or a social or individual good, whatever it may be, if the danger could not be prevented in any other way (…)”.

This could serve to legally justify acts of repudiation, with the argument that those who perpetrate them are acting to prevent the danger posed by Cubans who, according to the official discourse, are mercenaries at the service of the United States seeking to destabilize internal order.

Article 80 considers it an aggravating circumstance for any crime to be committed against a person who fulfills a “… legal or social duty, or in revenge or retaliation for his or her actions;” for example, injuring those who perform an act of repudiation or respond to a call such as Díaz-Canel’s during the 11J, would be an aggravating factor.

Article 119.3 provides for penalties of 7 to 15 years imprisonment for anyone who attempts to change, totally or partially, the Constitution of the Republic, or the form of government established by it, or to prevent the President, Vice-President of the Republic or the highest organs of the State and the Government from exercising their functions “by means of violence or other illicit means.” It does not clarify what these “illicit means” would be.

Article 120 criminalizes the exercise of rights recognized in the Constitution, if it endangers “the constitutional order and the normal functioning of the State and the Cuban Government.” The penalty for those who “arbitrarily exercise” these rights is four to ten years in prison.
This article of the bill is one of the most dangerous to civil society and Cubans in general, as it outlaws any peaceful attempt to seek democracy in Cuba.

Furthermore, it constitutes a harbinger of what Cubans can expect from the future Law for the Protection of Constitutional Rights: nothing. In the face of any violation of a constitutional right, the regime will be able to cite the “arbitrary” nature of the exercise of that right.

Article 143 criminalizes any funding —not only from the United States, as stipulated in Law 88 or the Gag Law— for what the authorities consider “activities against the State and its constitutional order,” with these not being limited to terrorist actions.

This article not only imposes up to 10 years imprisonment for those who finance or receive financing, but even for those who “support” or “encourage” these supposed activities against the State and its constitutional order.

Article 185.1 on the crime of contempt, which the regime routinely wields against the opposition and civil society, stipulates prison sentences of six months to one year or a fine of one hundred to three hundred pesos, or both, for “whoever threatens, slanders, defames, insults or in any way affronts or offends, by word or in writing, in their dignity or decorum, a public official, authority or their agents or assistants, in the exercise of their functions or on occasion or because of them.”

In the current Code it constitutes an aggravating circumstance and the sanction increases from one to three years when the contempt is against the president or vice-president of the Republic, the president of the National Assembly of Popular Power, other members of the Council of State, or the Council of Ministers and the deputies of the National Assembly of Popular Power.

This now extends to the president of the People’s Supreme Court, the Attorney General of the Republic, the Comptroller General of the Republic and the president of the National Electoral Council.

Article 263.1 perfects, in the interest of the regime, the formulation of the crime of disturbing the peace in such a way that even Cubans who go to a ministry or institution to ask for dialogue or raise a concern could be charged.

It provides for imprisonment of six months to two years, or a fine of two hundred to five hundred pesos, or both, for “whoever “through acts of violence, intimidation or provocation, violates the rights of others, or affects the order, peace and tranquility of families, the community or society.”

According to Article 263.3, the penalty is three to eight years imprisonment if c) public roads or access points to them are obstructed in a manner dangerous to those who use them; and d) during their execution, invade facilities or buildings.

It is not necessary, however, to use violence to be accused of public disorder; it is enough that the acts be “provocative,” and the regime usually considers “provocative” any sign of discontent or disagreement with the economic, political and social model in place in Cuba.

Article 274.1 establishes penalties of imprisonment of six months to two years, or a fine of two hundred to five hundred pesos, or both, for “the promoters, organizers or directors of an association whose constitution was not authorized.”

Until now, founding or directing a non-legally recognized organization did not constitute a crime. Henceforth, according to the bill, not only their organizers, directors and promoters, but also their associates and affiliates will be committing a crime. For the latter, Article 274.2 provides for prison sentences of six months to one year, or a fine of one hundred to three hundred pesos, or both.

Article 275.1 provides for imprisonment from six months to one year for anyone who participates in meetings or demonstrations held in violation of the provisions regulating the exercise of these rights.

For the organizers, it provides for a penalty of six months to two years imprisonment, or a fine of three hundred to five hundred pesos, or both.

However, these provisions are an unknown without the approval of the Law on Demonstration and Assembly, which is not within the schedule set in late 2021.

Article 431.3, Section H, provides for six months to one year of imprisonment, or a fine of two hundred to five hundred pesos, or both, for anyone who “promotes or induces abstention among persons entitled to vote.”

In 2019 the regime campaigned intensely for Cubans to vote “Yes” in the referendum on the new Constitution. Those who tried to promote the opposite option, or abstention, suffered harassment or short-term arrests, but, as they could not be charged with any crime, they had to be released. Now the crime exists, as only the regime can promote, and even induce, a form of voting among citizens.

Other articles of the bill are as pernicious as these, but they do not constitute a step backwards, because they already exist in the current Penal Code and the regime intends to keep them.

The death penalty is retained for crimes against the external security of the State, against the internal security of the State, other acts contrary to the security of the State, and for murder.

The fact that the bill eliminates capital punishment for rape, pederasty, violent robbery and forced entry burglary may seem to be a step forward. However, the bill makes it clear that, unlike the penal codes in other countries, in which the most severely punished crimes are those committed against people, and freedom, in Cuba the State is placed above the person, since the harshest penalties are for the aforementioned crimes against the external and internal security of the State. And we already know that even a protest can be considered a crime of this type, as the accusations of sedition against Cubans who demonstrated on July 11 have shown.

Finally, the regime will be able to continue to try minors as adults, since criminal responsibility will continue to be enforced from the age of 16, according to the draft Penal Code.

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