The State vs Luis Robles, or How to Turn a Political Prisoner into a Common Prisoner

They say that journalism is telling what someone does not want to be known. Perhaps, increasingly, it is to tell what many do not want to know.
 Martín Caparrós

Cuban citizen Luis Robles Elizástegui publicly displayed on December 4, 2020 a piece of cardboard that read “Freedom. No more repression. #Free Denis” on Havana’s San Rafael Boulevard. His intention, by virtue of what can be seen in the video, was to protest publicly and peacefully.

This act, like few others, has revealed the clumsiness with which the organs of State Security react before “thinking it over.” With an alacrity more visceral than calculated, they imprisoned the rebel, and as they went along, they have been trying out legal alibis because the Revolution does not like political prisoners. Thus, the agents used Luis Robles’ case as a crystal slipper and went out in search of some Cinderella.

The first excuse for the arrest was the application of one of the contraventions regulated by Decree 272 of the Council of Ministers, “On contraventions in matters of territorial planning and urbanism,” specifically Article 11 subsection h): “to place on the outside of buildings or in public spaces advertisements, posters, billboards, signs and elements of temporary or permanent decoration and ornamentation, 200 and 1000 pesos […]”. A prohibition that does not even deserve hermeneutic analysis since the absurdity of the charge becomes evident, but above all, it prescribes a penalty that lacks the severity intended by the government.

Subsequently, an indictment for “public disorder” was considered, under Article 200.1 of Law 62, Penal Code: “Whoever, in public places, spectacles or large gatherings, shouts an alarm, makes threats of a common danger or performs any other act with the purpose of provoking panic or tumult, incurs the penalty of imprisonment from three months to one year or a fine of one hundred to three hundred quotas or both.” Connected to a crime of “contempt” of 144.1: “Whoever threatens, slanders, defames, insults or in any way outrages or offends, by word or in writing, the dignity or decorum of an authority, public official, or their agents or assistants, in the exercise of their functions or on occasion or because of them, incurs the penalty of deprivation of liberty from three months to one year or a fine of one hundred to three hundred quotas or both.”

These charges have an exegetical problem, consisting in the fact that “public disorder” has in its wording a well-defined intention: “with the purpose of provoking panic or tumult.” And another evidentiary problem consists in the fact that “contempt” is difficult to be attributed when the entire act was filmed.

The next charge was that of “other acts against the security of the State,” a crime regulated in article 125 subsection c) of the Penal Code. This finally served to initiate the “Preparatory Phase File 49/20.”

This article, which culminates a lengthy description of a series of actions aimed at undermining state security[1], is a consequence of those actions. The article in question reads as follows:

Article 125: The following shall be punished in accordance with the rules established in Articles 12 and 49 with respect to preparatory acts:
c) incites another or others, by word or in writing, publicly or privately, to commit any of the crimes provided for in this Title. If the incitement has been followed by the commission of the crime, the agitator shall be punished as the perpetrator of the crime committed.

This criminal characterization is derived, which means that the prohibited action is not included in its text. For this purpose, it refers to “the crimes included in this Title.” It refers to Title I, “Crimes against the Security of the State,” which contains a long list of criminally prohibited conducts.

The first is described in Article 91, “Acts against the independence or territorial integrity of the State,” and reads: “Whoever, in the interest of a foreign State […],” a requirement that rules out the possibility of attributing this figure to Luis Robles, since it is absurd to allege that a socio-political claim arising from a peaceful demonstration emanates undoubtedly and exclusively from a foreign interest. If the defendant’s claim coincides with the interest of a foreign State, it does not mean that it is in its interest.

The second article of said Title is entitled: “Promotion of armed action against Cuba,” which does not even need further interpretation than the nomen itself. The following articles are in the same line: number 93, “Armed service against the State;” 95-96, “Disclosure of secrets concerning State Security;” 97, “Espionage;” 101, “Violation of the duties of resistance;” 102, “Usurpation of Political or Military Command;” 104, “Sabotage;” 106-109, “Terrorism;” 110-111, “Hostile acts against a foreign State;” 112, “Violation of the Sovereignty of a Foreign State;” 113, “Acts against the Heads and Diplomatic Representatives of Foreign States;” 114, “Incitement to War;” 115, “Spreading False News against International Peace;” 116, “Genocide;” 117, “Piracy;” 120, “Crime of Apartheid.” The description of these crimes can be deduced from their own titles, and none of them can be attributed to the action carried out by Luis Robles.

Article 94 is called “Aid to the enemy”, and even though the phrase could be interpreted in different ways, the body of the article itself enumerates, numerus clausus, the assumptions in which such aid would take place. Namely: “subsection a) facilitates the entry of the enemy […]; subsection b) supplies the enemy with funds, weapons, ammunition […],” and along this path up to subsection f), all related to an evident state of conventional war, inapplicable to the case under analysis.

Article 98 is reserved for the crime of “Rebellion”, and refers to those who “[…] take up arms […],” which also renders it inapplicable. However, Article 99 reads: “Whoever executes any other act aimed, directly or indirectly, at achieving by means of violence or other unlawful means […],” the latter in relation to the purpose described in paragraph b) of the base article: “to change the economic, political and social regime of the socialist State.” It is very dangerous to interpret this article in an extensive manner, because it is absurd to equate a peaceful demonstration, an opinion contrary to the status quo, with a rebellion, and to punish citizens with penalties of up to 15 years of imprisonment. Furthermore, not even a recklessly extensive interpretation would apply to the case of Luis Robles, since what was written on the sign he carried does not imply such grandiloquent pretensions, but rather basic justice —according to his own understanding— and a request for the cessation of repression —regardless of whether or not the authorities accept the existence of such repression.

In the same vein is Article 103, “Enemy propaganda,” which will be analyzed later.

The following, Article 100, is reserved for “Sedition,” and is intended, according to what it says, for those who: “[…] tumultuously and by express or tacit agreement, using violence […],” a requirement that prevents even the mere contemplation of this case.

In this same Title is described the recently prostituted crime of mercenarism, in article 118. It defines the criminal offense as follows: “with the purpose of obtaining the payment of a salary or other type of material retribution, to join military formations integrated totally or partially by individuals who are not citizens of the State in whose territory they intend to act […].” This is an openly militaristic characterization, and with a carefully delimited profile.

Finally, articles 121 to 123 contain complementary provisions, specifying particularities corresponding to the crimes described above.

Then comes Article 124, which initiates the drafting of the imputed crime, “Other acts against the Security of the State,” reserved for those who:

a) violates the territorial space by manning or traveling on board a vessel or aircraft, to commit any of the crimes provided for in this Title;
b) clandestinely enters the national territory to commit any of the crimes provided for in Sections One, Two, Three, Four and Six of Chapter I, or in Sections One, Two, Four, Five, Six and Seven of Chapter II, or in Sections One, Two, Three and Five of Chapter III;
c) organizes or forms part of armed groups to commit any of the crimes provided for in this Title.

None of them is applicable to Luis Robles, an interpretation that does not require special hermeneutical skills. Consequently, the article that allowed the opening of the aforementioned Preparatory Phase File, a narrative derived from and dependent on the rest of the articles that make up Title I of the Cuban Criminal Code, according to what they say, does not derive to any of the figures analyzed here.

This is an imputation as insubstantial as it is arbitrary, but by no means naive.

In Cuba, preventive detention —a precautionary measure suffered by Luis Robles— is authorized by the prosecutor —an actor that operates in open connivance with the Ministry of the Interior— and the only limit to its extension is Instruction 53 of the People’s Supreme Court. The minimum penalty for the crime under investigation is, in this case, ten years,[2] Thus, the State Security organs can either achieve a paralegal sanction through an extensive “preventive” detention, or gain time to continue looking for the right Cinderella.

A similar strategy was used in the case of the dissident artist Danilo Maldonado —popularly known as “El Sexto”— for whom I ordered, at the time, the release of the recently arrested prisoner because his actions lacked the necessary elements to charge him with the criminal offense intended by the State Security agencies. This order only served to withdraw from me all decision-making power over the case and the Attorney General’s Office of the Republic of Cuba —once again in incestuous marriage with the Ministry of the Interior— decreed the longed-for preventive detention. The case was closed “because his actions lacked the necessary elements to charge the crime,” but only after an unnecessarily extensive investigation that kept Maldonado in prison for ten months.[3] In short: a paralegal sanction derived from an arbitrary and malicious execution of the Cuban criminal procedure.

In the case of Luis Robles, the accusation has been perfected. Knowing that there is no Cinderella in this story, they looked for another one they could fit the shoe better. Now, the young man is accused of the crime of “Enemy Propaganda,” envisaged in article 103: “He incurs the penalty of deprivation of liberty from one to eight years whoever: a) incites against the social order, international solidarity or the socialist State, through oral or written propaganda or in any other form; b) makes, distributes or possesses propaganda of the nature mentioned in the previous subsection;” in connection with a crime of “Disobedience,” of article 147.1: “Any individual who disobeys the decisions of the authorities or public officials, or the orders of their agents or assistants issued in the exercise of their functions, shall be punished by deprivation of liberty for three months to one year or a fine of one hundred to three hundred quotas or both.”

The crime of “Disobedience” is poorly drafted by the Prosecutor’s Office, in two different moments. The first of them, when in the first paragraph of the first conclusion the prosecutor states: “he made a poster with phrases with which he clearly opposed the decisions of the police and judicial authorities,” insinuating that protesting against a sentence that is understood to be unjust is a “disobedience to the judicial authorities.”

The second moment, when the third paragraph states: “[the officer] approached the accused Luis Robles Elizástegui to persuade him to put an end to the provocations, and the accused ignored this call.” In this case, it errs on the side of omission, since the mere act of “approaching” cannot be understood as a “decision of an authority” that can be disobeyed. Consequently, the crime of disobedience, based on the prosecutor’s narrative —the only reality on which the Court can decide— is non-existent.

However, even more serious than the absurdity of the disobedience, is the dangerousness of the charge of “Enemy Propaganda.” If the most elementary social demands are interpreted as an “incitement against the social order”[4] punishable according to what it says in Article 103, then this results in the tacit recognition by the government that Cubans are not sovereign. The third article of the current Cuban Constitution —”in the Republic of Cuba sovereignty resides untransferably in the people, from whom all the power of the State derives”— is part of the hegemonic make-up that the system likes to sport, and nothing more.

If Cuban civil society cannot promote social changes without the danger of being accused of “inciting against the social order” or “inciting against the socialist State,” the Republic of Cuba cannot be described as sovereign, democratic or socialist.[5] If Luis Robles is sanctioned for the crime of “enemy propaganda”, the governmental despotism would be judicially recognized.

[1] Status quo, state security conceived for itself from the very focus of power.

[2] In the event that the charges of disorderly conduct and contempt at court were maintained, the maximum time in provisional detention could not exceed three months.

[3] A criminal investigation should not ordinarily exceed two months.

[4] This “order” is synonymous with status quo, order of things, not discipline.

[5] Article 1 of the current Cuban Constitution.

Frank Ajete Pidorych has a law degree from the University of Havana. He worked as an anti-corruption prosecutor in the municipality of Plaza de la Revolución, Havana, and later served as a municipal judge in the same district. Currently, he is a master's student at the Universitat Autònoma de Barcelona (UAB).


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