Monday, 20 May 2019 08:20

Criminal Proceedings in New Constitution: Live Letter, Not an Inch Less

Written by Zucel de la Peña and Esther De la Cruz
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Cuba already has a new Constitution. It was approved by its people in a referendum, proclaimed by the National Assembly of People's Power and published in the Official Gazette of the Republic; the three inviolable steps to rise as such. Their titles cover the present and future of a country that wants, but most of all, needs to be better.


Las Tunas, Cuba.- The organization of its precepts and being in tune with the methodology of the most current international instruments support the content of advanced virtues such as the expansion of the rights of citizens.

Undoubtedly, some elements, which come into conflict with prejudices or old postulates, stole the "cameras" in the popular consultation and limited the just appreciation of an area that the experts on the island have named among the most innovative in that text: the criminal processes. Such modifications put the judicial bodies before the challenge of maximizing their work.

It is a specialized knowledge that, with the enrichment that spread over the constitutional culture, the discussion of the people, must continue gaining ground, to know how to act in the face of any situation or irregularity. In Chapter VI, Title V, dedicated to the guarantee of rights, there are provisions that enhance this very important document.


One of the changes best received by specialists and the people has been the legal assistance since the beginning of the process. This specification was the fruit of the popular consultation, since the project registered the possibility of receiving legal assistance to exercise the defense, without further details.

Martha González Borrero, with 16 years of experience in the criminal court, says "It was something that was asked for a long time ago, even in the trial itself it is not uncommon for lawyers in their reports to say: 'If we had the opportunity to be from the first moment ... 'It is novel for citizens and gives lawyers a greater role, it forces us to improve ourselves. " Today she is the head of the department of attention to the population in the Provincial Court.

Marta says that her colleague Madelaine Rivero Rivas, legal advisor of that institution, welcomes the reform. In Cuba, "the National Revolutionary Police (PNR) has 24 hours to stop, and process a criminal matter, and the instructor and the prosecutor, each have 72 hours for their work, that sum seven days that a person can be detained without all the evidence and, until this inclusion in the Magna Carta, without the representation of a lawyer, an expert who told him what to do, what evidence he could provide."

Now there is more room to prepare the defense and with that a possible state of defenselessness is eliminated. "It is not the same," Rivero Rivas continues, "when the detainee meets his lawyer from the beginning and says: 'They made me a search and found such a product in my house.' There you can look for documents and prove the legal provenance. This also brings the advantage that, if the defendant understands that he is not being well represented, he has enough time left for the substitution and does not lose the course of his defense. "


The legal adviser points out that another novelty is to give a constitutional character to the writ of habeas corpus. This always existed in Cuba, it has always been in the Law of Criminal Procedure and its use allows to claim an illegal detention; with that support, it helps to make visible the rights, gives guarantees to individual freedom and provides more protection, as confirmed both experts that were interviewed by 26 Digital.

The legal adviser points out that "Even if in at the end of the process it is defined that the person is innocent, he can establish a claim against the injury he had, for example, the loss of his salary during the days of detention".

If this year the criminal chamber in Las Tunas is already undergoing a habeas corpus process, it may be the sign that its use is being oxygenated, and with it, the legality.


When reading the Constitution, a phrase calls for the transit through the competent bodies to be carried out impeccably, respecting fundamental rights: due process. A conjugation of words absent in the previous Law of Law and that speaks of intention of excellence.

According to Martha González Borrero, that state is consummated when there is no violation of any principle of Criminal Law or procedural terms, and everyone receives the necessary guarantees.

"The processes can be summary (short) or ordinary (long)." To comply with this precept in the latter is, for example, that the instruction does not go beyond the time it has to investigate, among many other elements.
"The Cuban criminal process is a mixture of the accusatory and inquisitive model of ancient Rome, there are oral and written procedures, the accused can change his statement at all times, he has no obligation to testify, nor to answer questions. Due process is vital for this to be accomplished. "


Article 99 of the Magna Carta adds major challenges to judicial bodies. Reference is made to the person who is violated constitutional rights and, therefore, suffered damage by State bodies, their directors, officers or employees, due to the wrongful act or omission of their duties, as well as by individuals or by non-state entities. The person has the right to claim before the courts the restitution of these and obtain, in accordance with the Law, the corresponding compensation or reparation.

In view of this mandate, of which the citizenry must feel ownership, the professionalism and knowledge of those who must give due course to such request must be raised. This is recognized by Misleidis Escalona Bizcaíno, vice president of the Provincial Court, who states bluntly that the total preparation to assume so much innovation today is not in all workers in the system, "but we will not stop insisting and controlling."

This comes from the legal provisions that must support most of these changes that have not yet come to light, within the numerous legislative transformations that the proclamation of the Constitution has left of task. The Penal, Civil and Family codes, and the Law of the Courts stand out in this group.

"We know that if a situation arises related to the new promulgated law, we must find the answers in the current laws. The law is marked by constant interpretations. With rational and logical sense, we can respond to the regulations. It depends much of the intelligence and disposition. What we do not know we have to look for it, to know what the instruction that can legalize a certain process is. "She says and assures that this is the mentality that now prevails among the forces of his entity.

Escalona Bizcaíno also details that the Supreme Court has already organized the work plan for such an arduous legislative task. "The laws are divided into books and we have designed when we will dedicate ourselves to each one, there are some that are imminent, but others will come more slowly, the whole system is striving to move forward as quickly as possible.


It is the intention of this sector to give Cubans a finished stage of legality, there is no reason to doubt, especially if we take into account that parallel to this great task the Supreme Court has ordered the creation in its provincial instances, since the beginning of the year, the population service. It is the task that Martha assumed here, an exercise designed for a judge.

Those delegations always had room for this service; it was assumed by their presidents and vice-presidents, but now it entails a much more individualized, constant and comprehensive action, which includes the supervision of entities.

"We attend from Monday to Friday concerns about any matter of the Court, economic profile, criminal, civil, family, administrative processes." So far the most common are civil proceedings, such as housing disputes and the division of property before a divorce."

The criminal cases have not been lacking either. Sometimes the users come for an information, but in others to establish a claim and there we advise them of all the steps, always clarifying that by this way we do not modify or review judicial resolutions ", González Borrero specifies this and 26 Digital does not stop imagining how much study that daily practice will require.

Also, while he is aware of the doubts that people have at the door of the office, it is easy to conclude that, among the popular debate, the yes to the referendum majority, the extraordinary session of Parliament on April 10th and the sheets of the Gazette fulfilled only the shortest chapter of this history, now the longest and defining comes: make the Constitution alive letter, not an inch less.

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