Amnesty or Dismissal: How to Free the 11J Protesters?

The request for amnesty as a solution to the detention and criminal prosecution of hundreds of people in Cuba after the social outburst on July 11 has been supported by some and rejected by others.

Opponents of the amnesty proposal claim that its request is tantamount to recognizing that expressing discontent with the Cuban government in a public manner is a crime, which would disregard protest as a right. This reasoning is not entirely wrong, but it does deserve to be qualified and evaluated in the light of Cuba’s political and legal reality.

Individual reports state that there are hundreds of detainees and defendants related to the protests on J11. For methodological purposes, those subjected to these criminal proceedings can be grouped into three groups.

In the first group are those who were detained and released after an administrative fine was imposed. A second group would include those who are formally accused and have not been tried. A final and third group would include those protesters who have already been tried and sanctioned, at least in courts of first instance.

The individuals in the first group are at liberty, but were sanctioned for committing a crime. The fine imposed on them has only one possibility of being reversed. This possibility is not even in the hands of who were fined. Reversing a fine under Article 8.3 of the Criminal Code (CC) is only possible by a decision of the Prosecutor’s Office. In most cases in which prosecutors use the prerogative to cancel fines imposed under Article 8.3 of the CC, they do so with the intention of aggravating the situation of the defendant and bringing him to trial. The detainees who were fined are at liberty because they paid the amount of money that guaranteed their release, but this did not offer them acquittal. When they paid their debt, they acknowledged having committed a crime.

Others have pointed out that, rather than amnesty, what the authorities should be asked to do is to dismiss all the defendants. That is a correct solution, but only applicable to the second group of detainees: those who are formally charged without having been fined or tried.

However, the option of dismissal should also be limited so it meets the standards of those who consider that the demand should be release without charges.

Dismissal as a solution

According to the current Criminal Procedure Law, dismissal is a power of the Prosecutor’s Office to cancel or suspend the effects of any criminal proceeding. It has two fundamental modalities: free dismissal and provisional dismissal.

The free dismissal “is definitive and prevents any further action on the same facts; it has the effects of an acquittal.” Meanwhile, the provisional dismissal “is of a temporary nature and allows the proceedings to be reopened, provided that new elements arise or there is merit to do so.”

The free dismissal —the only one that meets the standards of those who demand freedom without charges— is applicable in those cases in which the Prosecutor’s Office understands that the act does not constitute a crime or that there are elements that demonstrate that the accused are not responsible. However, the decision does not only depend on the Prosecutor’s Office, it has to be validated by a Court. Therefore, in order to avoid judicial control and to avoid having to justify the arrests and limitations of rights suffered by the accused, the Cuban Prosecutor’s Office rarely uses the free dismissal.

To a greater extent, Cuban prosecutors prefer to use provisional dismissal. This decision does not have to be validated by judges and it also has the effect of releasing the accused from prison and suspending the investigation. The provisional dismissal is applicable “when the perpetration of the crime is not sufficiently justified or when, having committed a crime, there are insufficient grounds to charge certain persons as perpetrators or accomplices.”

The above prerogatives ensure that prosecutors avoid providing an explanation for possible unnecessary detentions and become an additional control mechanism over the defendants due to the possibility of reopening the proceedings against them at any time.

Under this logic, requesting a dismissal as a solution to the procedural situation of those accused in connection with the J11 protests —unless a definitive dismissal is requested— may leave room for the authorities to comply with the request for release without having to recognize that the person should never have been detained in the first place because he or she has the right to protest.

Appeals and review as a solution to the trials

Persons tried and punished by a Court require a legal solution other than dismissal. The only way to revoke the decision of a Court is through the disposition of another Court of a higher hierarchy.

Those who have been tried in the first instance and have appealed against the decision may aspire to be acquitted by the Court of second instance to which they appealed.

In the event of an appellate judgment ratifying the decision of the first instance court, the only legal solution left to obtain acquittal would be to initiate a review procedure. This appeal is considered by the law as an exceptional procedure that does not suspend the execution of the sentence; therefore, the person will remain incarcerated.

Appeals and judicial proceedings are a third legal variant to be considered and, in addition, they may be used by the authorities to comply with the release requirements, although they do not guarantee the freedom of the accused.

In recent days, 17-year-old Gabriela Zequeira Hernández and Anyelo Troya, the photographer who filmed the sequences shot in Havana of the video clip “Patria y Vida,” were released from prison. These releases, which took place hours after a court sentenced them both to eight months and one year of imprisonment, respectively, may be perceived as a victory, it may seem that they were set free. However, they do not necessarily have that meaning. Release from prison and full freedom —or freedom without charges as it has been called in social networks— are not synonyms.

Those who hold political power in Cuba have not ceased to use questionable legal solutions to justify releases without granting full freedom and without recognizing the mistakes made.

The release of Gabriela and Anyelo does not guarantee their acquittal in their appeal sentence. For Gabriela and Anyelo, it is likely that, after making an example of them, their future will hold an unfavorable solution: the subsidy of their punishment. That is to say: an appeal sentence that will ratify the commission of a crime, but that will modify the sanction imposed on them for another of lesser rigor, such as the limitation of freedom (home imprisonment or “from home to work”) or correctional work without internment.

In case they are “benefited” by such a decision, they will be subjected to the control of the judicial authorities for the duration of the main sanction (eight months or one year) and will suffer the suspension of their political rights and the limitation of their freedom of movement.

Amnesty as a political symbol and a solution to the fragmentation of proposals

In sixty-two years of “Revolution” few amnesties have been issued. On February 17, 1959, the revolutionary government issued Law 79, “Law of Allegedly Criminal Acts carried out in favor of freedom.”

The norm established that it was “absurd that after the triumph of the Revolution had been achieved, the legal validity of the indictments and convictions issued against those who exercised the right of adequate resistance against the excesses of the Public Power that the constitutional text (Constitution of 1940) consecrated.”

Law 79 of 1959 also stated: “the situation analyzed in the previous ‘insofar as’ would not be appropriately superseded by the enactment of a mere amnesty law that entails the recognition of the unlawfulness of those revolutionary actions, but it is necessary to declare the lawfulness of those acts that far from violating the legal norm were guided by the purpose of reestablishing in our Homeland the rule of law”.

Excerpt from Law 79 of 1959.

The revolutionary government’s regulations make two things clear. The first: when there is political will, the law does not constitute an obstacle. The second —and which is at the center of the current debate—: an amnesty implies considering that the pardoned acts are unlawful, or, in other words, contrary to the law.

Recognizing the illegality of an act is not the same as recognizing its justice or even its legitimacy. In Cuba, domiciling yourself in Havana without complying with the established regulations is illegal. However, few consider Decree 217 just and legitimate because it is a clear violation of the right to freedom of movement.

In Cuba it is also illegal to “disseminate, through public data transmission networks, information contrary to the social interest, morals, good customs and the integrity of persons.” However, many consider this provision as illegitimate as it constitutes an attack on a superior and pre-existing right: freedom of expression.

In this sense, requesting amnesty may imply the recognition of the illegality of protest in Cuba. However, the recognition of this “unlawfulness” does not necessarily imply the legitimacy of the prohibition, but rather the recognition of a reality and the attempt to offer a feasible solution to modify it.

There is no evidence that the Cuban rulers will yield to the requests for absolute and unconditional freedom that have been formulated from the social networks. Only amnesty is capable of offering, through a single formula, the solution of full freedom to all those prosecuted —including those who were fined and those who have not been tried yet— for the events of J11.

The main risk of amnesty in Cuba today is not the recognition of the commission of a crime

Carlos Rodríguez Mejía, PhD in Law and specialist in Socioeconomic Sciences, Constitutional Law and Political Science, considers that amnesty is “any legal measure taken by a State in the internal order by means of which the criminal nature of certain facts is removed and, therefore, their authors and participants cannot be subject to proceedings nor can they be subject to any penalty; when there are proceedings in progress, these are terminated and, in the case of penalties already established or in the execution phase, these are without effect or cease to apply.”[1]

In analyzing Rodriguez Mejía’s definition, it may be concluded that although amnesty is based on recognizing as crimes the conducts it pardons, it also implies a renunciation by the State to consider them as such and to prosecute them. Amnesty generates the cancellation of the effects of the sentence and of the criminal record that the sanction may have generated in the defendant. For many, amnesty implies forgetting or, as Cubans say, a clean slate.

For this last reason, the most dangerous aspect of an amnesty under current Cuban conditions is not the recognition that the protest is criminal. That is an interpretation that can be qualified. The most dangerous thing about amnesty is that with it the people in power could impose a cloak of oblivion over the serious human rights violations committed by the authorities during the repression of protest.

This is what happened in Nicaragua in 2019, when after the popular protests that shook that nation and left more than 300 dead, the Sandinista government issued an amnesty law rejected by a large part of the “benefited” civil society.

In Cuba, an agenda demanding investigations, truth and compensation for the victims has not yet been imposed. The first testimonies of torture and ill-treatment suffered before or during detention are just beginning to emerge. Most of the victims of repression have preferred to remain silent.

However, any attempt by the Cuban authorities to silence the repression through an amnesty law could be considered invalid in the future. The obligation to prosecute and punish the perpetrators of human rights violations, as an expression of the duty to guarantee, has its legal basis in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which Cuba is a party. According to these norms of international law, there is no statute of limitations for criminal prosecution or amnesty for crimes of torture or serious human rights violations.

In any case, with or without an amnesty law, nothing guarantees Cubans that the country’s authorities will fulfill their duty to guarantee and proceed to investigate and judge the violations of rights committed during the repression of the protest. However, wresting an amnesty law from power would constitute an unprecedented political symbol and would guarantee the freedom of the hundreds of detainees and defendants of the J11.

What can we do to achieve amnesty?

In order that power does not use the amnesty law as a mechanism to cover the excesses committed by its acolytes, the law should be promoted by the citizenry. A citizens’ movement articulated on the basis of the pain of hundreds of mothers, relatives and friends of the detained youths, and of so many others who reject injustice, can propose the limits and conditions under which the amnesty should take place.

Amnesty must be presented in a law or a legal norm. According to the Cuban legal system, the citizenry has the capacity to attempt to promote popular legislative initiatives. The legal requirements for the impulse of a legislative initiative are hindering and are designed to inhibit and co-opt its use. However, the collection of ten thousand or more signatures in support of such initiative would constitute political pressure on the government and would demonstrate that the citizens who took to the streets were neither “confused” nor vandals, but citizens with every right to demonstrate.

Even if the Government carries out the foreseeable blocking, stigmatization and criminalization of a popular legislative initiative, it would only confirm that the sectors who took to the streets on July 11 do not have legitimate mechanisms to channel their concerns. It would be the demonstration that the occupation of the streets, peaceful protest and civic resistance are not only legitimate, but are now the only effective way in Cuba to achieve being listened to and to become political actors.

[1] Rodríguez, C. (1992). Amnistía, gracia y toda otra medida similar. Lecture given at the International Meeting on the Impunity of Perpetrators of Serious Human Rights Violations. Editorial Abrax, France, pp. 179-180.

* This text was originally published in El Toque

Eloy Viera Cañive Cienfuegos (1987). Law Degree (2011). Since his graduation and until 2016 he worked as a lawyer for the National Organization of Collective Law Firms (Organización Nacional de Bufetes Colectivos, ONBC). He has taught as an Assistant Professor of the Bachelor's Degree in Law at the University of Cienfuegos. Since 2017, he has promoted the Fundación Colectivo Más Voces. He has collaborated with several Cuban independent media, mainly El Toque where he coordinates the project El Toque Jurídico (elTOQUE Jurídico), dedicated to the legal education of the Cuban population.


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