By Gustavo A Maranges on December 4, 2022, from Havana
Cuba’s Congress, photo: pixabay
Last December 1st, a new Criminal Code came into force in Cuba. The updating process began almost four years ago. This new legal body is an updated version and much more adjusted to the Cuban reality than its predecessor. Although, a very controversial document that has faced criticism since it summarizes all the crimes and their sentences. However, it is fair to acknowledge it is a necessary instrument to keep a country running, whether we like it or not.
The previous version of the Cuban Criminal Code dates back to 1987. That is to say, 35 years have passed since its enforcement. During this time, the world has quickly evolved, and Cuba does not escape this reality. Advances in environmental rights, privacy, and the development of information and telecommunications technologies, as well as a greater awareness of discrimination based on gender, sexual identity, and race, are just some of the most evident challenges confronted by the previous version.
These issues led to substantive changes, but there were also technical challenges. Faced with the development of society, the Cuban parliament passed several laws to circumvent the upcoming challenges as they arose. It made the effective exercise of some rights and justice administration even more complex due to the dispersion generated by these temporary solutions.
For anyone with a minimum of information and knowledge, the update would seem reasonable, although the opposition and the mainstream media have tried to sell the new Code as a tool of repression in the wake of July 11 protests. It would be naïve to think that these events did not influence the new Code, since July 11 proved the short comings of the Cuban legal framework to deal with significant issues related to criminal and procedural law.
The new Code fits the current Cuban reality. For instance, punishments for corruption crimes were strengthened. On the other hand, crimes against the environment were also typified, as well as those based on race, ethnicity, sexual identity, and gender. This last issue was widely debated since a group of representatives, including Dr. Mariela Castro Espín, advocated the inclusion of the term “femicide.” However, the petition did not succeed because most of the parliament considered the underlying issue included, although the term was absent.
Another widely debated matter was the age of criminal responsibility, which is 16 years old in Cuba. Despite questions in and abroad, the element remained the same, as were all special provisions to oversee trials and sentences affecting people between the ages of 16 and 20.
Cuba is not as unique as critics want us to think . For example, in Belgium, the age of criminal responsibility is 12, while in Spain, it is 14. A simple comparison like this does not answer the questions about Cuba’s stance, but it should make us think about how seldom these other countries are accused of violating the Convention on the Rights of the Child. The simple fact that we know about Cuba and not about the rest takes me to the politicization of the issue, which pays little attention to the real welfare of Cuban minors.
Another positive aspect of the Code is the extension of accessory sentences. This change aims to reduce the number of imprisonments by replacing them with community work, limitation of liberty, and house arrest, among others. In this way, the harmful effects of imprisonment will be reduced, while easing the social reintegration of the convicted person. Likewise, the mechanisms for commuting imprisonment to accessory sentences were relaxed, and the crime of “social dangerousness,” an archaic legal concept highly questioned by many sectors of the population, was eliminated.
The new Code also expanded inmates’ rights, who may now go to the courts and administrative bodies to directly demand their rights. Until now, these procedures were not duly endorsed by the Criminal Code, although they were applied in a customary manner, which has no legal force in Cuba. Therefore, this is a big step forward regarding rights and security.
On the other hand, crimes against personal and family privacy, image rights, and others such as cyber harassment and defamation were also enacted. These and other issues closely related to the development of information technology and communications were very scattered, and the new Code gave them a much more coherent treatment based on their common nature.
Spreading fake news is among the most controversial crimes, which can be punished with 2 to 5 years of imprisonment. The growing internet penetration into Cuba, especially in social media, implied challenges for the Cuban legal system that were not solved until now. A little more than a year ago, Decree-Law 35 was issued, which was a precedent whose defects and virtues were taken into account for the new Code.
The world is very familiar with the damage that this type of crime can cause. Cuba suffered it two-fold as fake news related to the pandemic and the events of July 11 came together. Therefore, despite the criticism of the limitations on freedom of expression, this is a step that provides greater security to all citizens since much of our lives takes place in the digital scenario.
It has been the main criticism against the Code, although taking this type of safeguard is a worldwide trend, even in Europe and the United States, countries that assume themselves as “champions of freedom of expression.” Which is national security for a few countries, and cannot be judged as censorship for Cuba.
At this point, it is necessary to recognize that fake news is very complex, and its solution involves defining what is true, something philosophers have spent centuries on without absolute results so far. Therefore, beyond the Code, the effectiveness and correct implementation of these provisions will depend a lot on human subjectivity, which is unmanageable and, therefore, impossible to attribute to a state or government.
Finally, the Code also toughened the sanctions for crimes against the political and social-economic order. The priority of any criminal law body is to preserve the constitutional order and people’s welfare. Therefore, any analysis that does not take this into account starts from fiction. In the case of Cuba, the order was supported by over 85% of Cubans, which is a significantly high percentage.
Taking this into account, and despite all questioning, the stiffening of penalties against those who receive funds from a foreign agent to attempt against this order to spread false news, is appropriate. There is not a single country that does not protect itself with this type of measure, so there is no room for questioning us in this regard.
In conclusion, the Code is a very comprehensive body of laws, with positive and negative aspects, but it is by no means an instrument of censorship or repression-based. The updating of many crimes and their adjustment to the Cuban reality are two elements that will bring about a better administration of justice for all Cubans. In the end, this is what it is all about, the construction of a fairer and more balanced society.
Source: Resumen Latinoamericano – US