What to Expect from Cuba’s New Penal Code Now in Force?

By Eloy Viera Cañive (El Toque)

HAVANA TIMES – The new Penal Code came into effect on December 1, 2022. Lots of things can be said about the law, and while the implementation of the new Penal Code won’t change the essence of Cuba’s totalitarian system, it will change its forms of repression. 

From now on, the Government will have more sophisticated tools to legitimize clear human rights violations against anyone; making it easier for them to justify surges in violence and arbitrariness. The new Code forms part of the Government’s adjustment to “legalize” improved forms of repression in the face of more and different citizen-led initiatives that have appeared recently to challenge them and express their unhappiness.

The Government also took advantage of this opportunity for political marketing. They claimed a wish to reform and modernize the Code and played up changes introduced to timely issues, such as gender-based violence and the treatment of juvenile delinquents. 

One of the points they also used to defend the new Code’s good nature was the “theoretical” elimination of pre-crime security measures. For a long time, the Cuban Government has used a person’s “dangerous condition” to repress dissent and eliminate the “scourges” that have no place in “socialist society” but exist in Cuban reality. Prostitutes, slackers, alcoholics, and the political opposition could be detained in regular correctional facilities without having ever committed a crime.

A lot of fanfare has been made about the elimination of this possibility from the new Penal Code. However, instead of eliminating it, the people responsible for writing the Code have just converted pre-crime security measures into a crime: disobedience.

Starting December 1, 2022, people who repeatedly “disobey or fail to comply with the measures that have been legally placed against them by the competent authorities, or warnings as a result of violating measures adopted by the competent crime prevention body or authority,” can be punished with a sentence of 6 months – 2 years in prison or a hefty fine, or both.

The words “legally” and “competent crime prevention body or authority” stand out. There hasn’t been a law up until now to regulate limitations in the work of the police. Much less that establishes and identifies the “crime prevention” body or corresponding authority. 

This deregulation gives rise to questions that the Cuban people don’t have the answers for: What is crime prevention? How do you prevent crime? What rights do I have in the face of crime prevention? Can I refuse or appeal a warning with someone else? Do I have to go to the police when I’m summoned to have a crime prevention measure imposed on me?

The law’s lack of clear answers has formed part of the Cuban Government’s strategy to keep impunity for those who work to uphold their survival, no matter what the cost. 

Another example reveals how important this is

Up until December 1st, the Government needed a complaint and an open criminal case against a person to justify a legal summons. Official summons are a regular practice for Cuba’s repressive forces. It’s common for people to be summoned to appear in different spaces (police stations, immigration or ID offices) to be “interviewed” by Ministry of Interior officials or the police (who don’t even exist a lot of the time). 

In most cases, these summons aren’t part of a criminal process, so they could be considered illegal. Especially because they are threatening procedures to get people to stop behaving in a way that the Government finds detrimental to holding onto its status quo.

Recently, professor Alina Barbara Lopez Hernandez was the victim of one of these summons and she embarked on a legal battle by filing a complaint with the Provincial Public Prosecutor’s Office in Matanzas. She claimed that the summons was illegal because there weren’t charges or an open criminal process against her that her presence would be needed as a witness or defendant. The result of her complaint? The authorities withdrew the summons without giving an official response to her complaint.

However, ever since the new Penal Code has come into effect and without a law that sets out how, when and where the police can warn and impose crime prevention measures, Alina Barbara’s argument won’t stick now in legal terms. 

State Security just has to change how it operates but it can still do what it’s always done: use the police to summon somebody to issue a warning or impose crime prevention measures. Making the most of this summons to intimidate and legitimize this as a warning (which doesn’t need legal grounds) signed by the “authorized official”: a police officer or sector chief, who are just mere puppets.

Crime prevention in the Cuban Government’s mind also includes preventing independent journalism, the political opposition, or citizens’ free expression on social media. Warnings will carry on being accompanied by “crime prevention measures,” “advice” and “guidelines” which, as of December 1, must be complied with, otherwise you risk going to jail.

The Law has never been a limit or obligation for the Cuban Government. With or without the Law, they have and will continue to persecute and criminalize dissent and irreverence, which the Cuban system of government has needed to hold onto power. With or without the new Penal Code, there will still be important or connected people with the political elite who the Law won’t be able to touch.

However, “legality” – which is what the Law is called in places where it doesn’t exist – has been crucial for legitimizing repression and the arbitrary actions of the Cuban State. “Legality” comes into play when they need to hike up repression or place someone behind bars for an indefinite period of time because they have become a danger for the Cuban Government.

Meanwhile, political leaders can repress from the shadows without leaving a trace, “legality” is just an illusion; something the State always has at its fingertips when it needs it because we are living in many people consider “exceptional” times. 

If they don’t need legality to come into play, they will use coercion. Repressors/machos/neighborhood punks that challenge and have fun – as henchmen – as they repress their fellow Cubans. This repression is fueled by the impunity they know they have and leads them to arrest/kidnap anyone they want for hours without any justification; and to interrogate, threaten and record people alone at State Security protocol houses.

Read more from Cuba here on Havana Times.