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LEGAL TRAINING RESOURCE CENTER
An island nation in the Caribbean, the Republic of Cuba has been ruled by Fidel Castro since the Cuban Revolution of 1953-1959. With a population of over 11 million people, Cuba is the largest island nation in the Caribbean.
Type of System
The Cuban legal system is heavily influenced by the Spanish civil law tradition.
Sources of Defendants' Rights
Defendants' rights are currently protected by the Cuban Constitution of 1992 (with amendments in 2002) as well as the Criminal Code of 1987.
In Cuba a defendant is presumed innocent until proven guilty. Witnesses may be involved in court proceedings and the defendant has a right to have a defense counsel if the individual is unable to provide their own defense. There are provisions to ensure public access to legal counsel at a fee set by the state. The accused has a right to a fair trial, presided over by members of an independent judiciary. The defendant has no right to a trial by jury. Within the Cuban legal system there is no alternative to formal criminal proceedings in court.
While the Cuban Constitution does permit capital punishment, there are certain limitations. Article 30.8 of the Cuban Criminal Code of 1987 states that no punishment may be ordered which impairs the dignity of the individual. Under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Cuba ratified in 1995, the Cuban legal system has duties to prevent defendants from being tortured, although reports have been made by human rights charities doubting the systems adherence to their duties under this international instrument.
Article 29.1 of the Cuban Criminal Code states that while capital punishment is a legitimate form of punishment within the Cuban legal system, it is regarded as “exceptional” and is only ordered in the “most serious offences”. Women who are pregnant when committing the crime or during the trial and those individuals who are under 20 years are excluded from the death penalty. Capital punishment is executed by a firing squad.
Many criminal cases are resolved using the day fine system. However, Article 35 of the Criminal Code of 1987 protects defendants from excessive fines. The fine is calculated using a day rate(from a minimum of 50 cents to a maximum of $20) with the court taking into consideration the time of arrest and detention, the defendant’s earning, costs of living and the defendant's number of dependants. The fine set can also be paid in instalments.
The National Revolutionary Police Force are charged with the responsibility of law enforcement in Cuba. Despite this responsibility, there are very few statutory limitations placed upon police discretion in relation to stop & search procedures and their powers of arrest. Stop and search procedures are regarded as separate from the initial criminal investigation and therefore it is believed that civilians do need provisions providing protection from the police at this stage.
The Ministry of the Interior is charged with the responsibility of overseeing the National Revolutionary Police Force, but due to its political place in Cuba, it appears there is no independent watchdog of the police procedures.
Police powers in regards to the arrest of a defendant are governed by Article 58 of the Cuban Constitution which states the manner and cases in which the provision applies to. The Cuban system does not have a comparable warrant procedure when arresting an individual as countries such as the United Kingdom, although a warrant is required for searching a home which is not regarded as the scene of a crime.
Confessions can be admitted in court, but the manner in which they are obtained must involve no violence or force. If a confession is made orally, then a written copy must be provided to the defendant to be signed. If a confession is made by a minor (an individual under the age of 16) then the document must be signed in the presence of their parents or legal guardians. Whie a confession is admissible, it is not sufficient to base a prosecution solely on this evidence.
There is a hierarchal system of courts in Cuba, with the Supreme Court being the highest, followed by Provincial, Municipal and Military courts; there are no special courts. The Supreme Court deals with ‘penal, civil and administrative, labor, state security, military’ matters. A defendant has a right to a trial, which is usually heard by a panel of 3-5 judges, usually including professional and lay judges (both of which have equal duties under Article 124 of the Cuban Constitution of 1987). Under Article 122 of the Constitution, judges are to be “independent and only owe obedience to the law” and it is for the judicial panel to hear the case and determine the guilt and sentence.
Pre-trial incarceration is limited to 24 hours. Within this time, the police force must submit the case to an investigator will then determine if there is enough evidence for a criminal case, this must be referred to the prosecutor within 3 days who also has 3 days to either release the defendant or refer the case for judicial review as to whether the defendant can be held in custody. If the defendant is released on bail, there may be certain considerations, such as responsibility being given to a work place, union or other recognised organisation. This decision is taken by the court and is final. This applies to felony cases, but is not held to be appropriate for misdemeanour cases, unless there is a fear that the defendant will leave the country.
If it is held that there is enough evidence to bring criminal proceedings, including the availability of witnesses, a bill of indictment must be submitted to the court as well as the defendant’s attorney.
During the trial, the case of both the prosecution and defence are read out. The defendant is then called as the first witness, although the defendant may decline to testify. The defendant must not be put under any pressure to testify. If this is shown to have happened, then the testimony of the defendant is “null and void” and those responsible will be punished. The other witnesses are then called and examined by the counsel and judge, followed by the closing statements, including that of the defendant. In cases involving expert witnesses, the same procedure is followed as witnesses giving evidence.
Following the trial, the court has 10 days to make their decision in writing, including their reasons as to why they reached the decision.
Article 28.1 of the Cuban Penal Code of 1988 outlines the main sanctions which can be imposed, including death, deprivation of liberty, correctional work placement, correctional labor without confinement, restriction of liberty, fine or a reprimand. Imprisonment sentences range from 15 to 20 years for crimes such as murder to 2 to 5 years for crimes such as trafficking foreign currency.
Appeals can be launched as to the legal issues raised in the case but not of the facts, although it is possible to apply for a revision of the circumstances of the cases which can result in a change of sentence or a re-trial.
Prisons in Cuba
While the number of prisons in Cuba is not known, there are a high volume of prison facilities, as well as a number of open farms where individuals charged with minor offences carry out their sentences. There are also prisons which are more comparable to school facilities for defendants regarded as minors (those under the age of 16). The prison system is administrated by the Penal Directorate of the Ministry of Justice and conditions are governed by Article 31.1 of the Code which includes the provision of clothing, and medical care, as well as the provision of education (up to a high school degree), the ability to learn a trade or to work to earn money.
Article 31.1 also provides for the medical care of prisoners, to the same level of care provided outside of prison, and article 20.1 of the Cuban Criminal Code provides “mental illness” as a defence to a crime. Despite these provisions, human rights charities have raised concerns as to the level of care received. The Cuban legal system states that the dignity of defendants must not be impaired in prisons, although there has also been doubt as to whether this idea is upheld. Under Article 30.5 men and women serve their sentences separately.
- 2006: Prison Population:60,000 (estimated)
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