Another violation of human rights
By Eloy Viera Cañive (El Toque)
HAVANA TIMES – Up until now, the majority of those put on trial in Cuba for demonstrating on July 11th have been without a lawyer.
Joselin Sanchez Hidalgo, a Supreme Court judge and director of Supervision and Attention, reported that up through August 4 sixty-two Cubans had received abbreviated trials, in which only one defendant was declared not guilty. The judge’s report was posted on the official government website Cubadebate.
The most serious statistic offered by Judge Sanchez is that of the sixty-two people appearing before the judge, forty of them were sentenced without the presence of a lawyer.
The expedited trial proceedings have generated widespread criticism. As justification, authorities allege that such procedures are recognized in Cuban law, and allow the accused to be tired in the absence of a defense.
The Supreme Court authorities claim that those who appeared in court without a lawyer present had voluntarily renounced that legal right to an attorney, although the institutions did everything within their reach to guarantee it. However, several defendants tell a very different story.
Ramon Salazar Infante, 64, is president of the Autonomous Pinero Party, a political opposition group based on the Isle of Youth. He was detained during the July 11 protests, together with his daughter, Dayanis Salazar Perez. After being held for seven days at the Police Station in Nueva Gerona, Salazar Infante was transferred to prison.
“After being detained, they didn’t allow my father to make the phone call he had a right to. Other people arrested with him were also denied this right. He didn’t call me until 14 days later, when he was already in the El Guayabo prison,” denounced Dayanis Salazar.
Lorenzo Rosales Fajardo is a pastor of a Christian church in Palma Soriano, in the province of Santiago, a city in eastern Cuba. He, too, was detained during the protests. He wasn’t granted access to a lawyer until ten days later. This is three days over the deadline established in the current Criminal Procedure Law, and after authorities had already notified Rosales’ wife that he’d remain in pre-trial detention.
Bertha Baruh’s daughter, niece and a nephew were all arrested. While Maykel, her nephew, is free and awaiting his trial date, her daughter, Yanay Solaya, and her niece were both already sentenced to a year in jail in a summary trial without any defense. They’re currently in the Guatao women’s prison in Havana.
These three stories that El Toque was able to confirm are just a small example of the hundreds of experiences of citizens who’ve been jailed for exercising their right to demonstrate peacefully and then have encountered barriers to accessing a legal defense.
Authorities’ justifications contradict Cuba’s Constitution
Reports of the lawyer-less summary trials for those detained in the July 11 social outburst, have been accompanied by controversial declarations from the Cuban judicial authorities. They claim that the right to defense is a dispensable, not an irrevocable, right. However, such reasoning runs contrary to the logic of human rights.
The International Pact for Civil and Political Rights considers that anyone accused of a crime must have “adequate time and opportunities for the preparation of their defense and [for communication] with a lawyer of their choice.” In addition, the right to defense is recognized by the 2019 Cuban Constitution as one of the due process guarantees. This document also classifies the right to defense as a fundamental human right.
An essential characteristic of human rights is that they’re irrevocable and inalienable. That is, they can’t be renounced or ceded. Hence, if the right to defense is a human right in the eyes of the Cuban Constitution, we must accept that no one can renounce it. That’s why public defenders exist – as a protective mechanism guaranteed by the state irrespective of the desires or possibilities of the accused.
The convenient omissions by the Supreme Court president
In a press conference on July 24, Ruben Remigio Ferro, president of the Supreme Court, stated: “These people [demonstrators] are being tried via a more agile and expedited procedure, but not without guarantees. I must note that this isn’t only a process that’s established in our Cuban laws, it’s a universal practice.”
He further stated: “The majority of countries in the world establish agile and expedited procedures for less serious crimes. They’re usually called abbreviated procedures. In our Latin American region, several countries have passed laws that contemplate such procedures. You can review the laws of Ecuador, El Salvador, Argentina.”
The parallels that the Supreme Court president was attempting to draw were deliberately incomplete. It’s true that many of the world’s countries contemplate certain brief special procedures for lesser offenses. However, the questions swirling around what happened in Cuba, and that motivated the press conference, weren’t about the swiftness of the proceedings, but the absence of due process guarantees, especially the absence of defense lawyers during the trials.
Taking the examples offered by Ramon Ferro, neither Argentina nor Ecuador nor El Salvador have procedures where people can be tried in abbreviated proceedings without a lawyer present.
The Salvadoran Penal Code, for example, expressly recognizes the inviolability of defense. According to their laws, the accused has the “irrevocable right to receive assistance and to be defended by an attorney of their choice or by a pro bono lawyer provided by the State, from the moment of their detention until sentencing.”
Further, the legality of a procedure doesn’t make it any more fair or less reproachable. The abbreviated Cuban proceeding doesn’t provide the necessary guarantees, and the absence of a lawyer during the trial is unconstitutional. There’s no justification for dispensing with this right in situations of this type. Much less can we accept a legal logic that contradicts the universally recognized attributes of human rights.
What the Cuban state wanted, above all, is to hinder the defense of people on trial for political motives, obstruct the capacity of the accused to express themselves, and avoid legal arguments about the political essence of the trials.
Buying time: from summary trials to ordinary accusations
Apparently, the general criticism has caused the Cuban authorities to slow down the use of summary trials, and to look towards other options.
Hundreds of demonstrators still remain in jail. This is chiefly because the Prosecution and the Interior Ministry initially charged certain July 11th participants with more serious crimes, beyond the standard “inciting criminal actions”, “propagating contagion”, and “disobedience”.
In cases of crimes carrying sentences of over a year in prison, the authorities are allowed to employ a slower investigation process and to dictate pre-trial detention for the defendants, as a form of advance punishment
This so-called “ordinary procedure” allows them to keep the demonstrators in pre-trial detention for days or months, and free them later at the authorities’ discretion: when tension levels change, or the visibility of their cases causes them to make concessions.
In the weeks after July 11, the case of video producer Anyelo Troya became known. Troya, who participated in filming the song “Patria y Vida” (Homeland and Life), was initially found guilty and sentenced to 10 months in jail, then released a few hours after sentencing, as the result of public pressure and the denunciation of his case. Recently, the initial sentence was changed to a hefty fine [instead of jail time]. Similar sentence corrections have begun to be reported in different parts of the country.
Because it’s slower, the ordinary legal process allows the Cuban authorities more room to maneuver. Also, in contrast to the abbreviated procedure, it establishes the clear obligation for the accused to be tried in the presence of an attorney. The attorneys must also have access to the investigation case file and be allowed to meet with the accused before the trial, so they can propose evidence or request the modification of the pre-trial detention measures.
Other tactics used to inhibit the defendants’ right to counsel
The Cuban authorities have apparently tried to correct the problem of conducting criminal proceedings against the demonstrators without having lawyers present. However, they’re still trying to diminish the accused demonstrators’ possibilities of mounting a strong defense. The use of the “ordinary procedures” is one of these new options.
Another is the use of “secret” files. For example, in the Provincial Unit for Criminal Investigation for the city of Santiago, dossier number 127/2021 summarizes the investigation of 44 demonstrators.
The documents in that file were analized by the Cuban Human Rights Observatory after contacting the relatives of Exderlin Lopez, one of the accused. They reveal the authorities’ marked interest in lessening the demonstrators’ capacity for defense, and with it avoiding any possible publicity about the trials.
The Santiago D.A. classified the file as “secret” for reasons of state security. According to documents in the dossier, the investigation is aimed at clarifying the responsibilities of those implicated in the events of July 11, which are then described as follows:
“At approximately 3 pm on the afternoon of July 11, 2021 (…) they met without complying with the corresponding legal formalities and participated (…) in acts of chaos, disorganization, disrespect to the National Assembly deputy and the president of the Republic of Cuba, as well as attacks on the physical integrity of members of the National Revolutionary Police, the Special Brigade and other members of the Interior Ministry, who were exercising their functions of reestablishing order and the peace of our citizens, and of the people who opposed the acts realized by the accused in the city of Santiago of Cuba.”
The Prosecutor then enumerates the crimes that the participants may have committed during the described events: public disorder; disobedience; attempted assault; illicit association, meetings and demonstrations; and spreading contagion. However, given the declaration of secrecy for the dossier, neither the accused nor their lawyers were allowed to review the evidence against them until the day of the trial.
In such cases where the files are maintained in secret, defense capacities are exponentially reduced. The lawyers can only access the investigations dossier once it’s been presented to the court. They remain blind throughout the investigation process, while public opinion shares their blindness.