There is no spoon. Notes on “Contempt” in Cuba

—Do not try to bend the spoon, that’s impossible. Instead, just try to realize the truth
—What truth?
—There is no spoon

The Matrix

The most visible stage of the criminal process, from the point of view of those who are not actors in the machinery of justice, is the oral and public trial. Oral proceedings are mandatory; they become the basis for the forensic debate of evidentiary material. In Cuba, publicity is a general rule —although the judge may suppress it if he understands that one of the assumptions regulated in the Article 305 of the Law 5, “criminal procedure,” is involved. However, this public character of the trials does not mean that the spectators are taken into account; the doors of the house are opened so that the neighborhood can see, if so they wish, what is going on in there, but in no way is the neighborhood part of the family dynamic— beyond the indirect control exercised by the person who bears witness to what it is being said and the facts. This implies that in reality the spectators rarely understand what is happening, and the act of justice, though visible, becomes incomprehensible.

Now, depending on the severity of the possible punishment, there are two procedures. The first is called “ordinary”. This ordinary procedure is regulated in the fourth book of the law previously invoked, and although it can be perfected, it has a series of procedural guarantees that make the act of justice transparent. This is the procedure for trying crimes whose punitive framework exceeds one year’s deprivation of liberty.[1] In the case of crimes for which the possible punishment[2] does not exceed one year’s deprivation of liberty, the summary procedure is then applicable, and its procedural logic is similar, but a series of guarantees are eliminated based on the simplicity of these criminal offences. The greatest impact on the ideal of justice in this type of procedure is given by the possibility that the defendant may appear in court without legal representation; furthermore, the presence of a prosecutor is not even necessary. This means that the defendant can find himself alone before a professional judge[3] who, in a frankly omnipotent position, will analyze the evidence presented by the National Revolutionary Police without any other person questioning or contradicting the approach previously taken to the evidence. Supported by lay judges[4] who tend to second his opinion, the professional judge decides on the guilt or innocence of the accused and defines the punishment he considers appropriate.

Within this summary procedure, there is also an institution known as a “direct attestation”,[5] which was regulated in a circular letter issued on March 2, 1992[6] by the President of the People’s Supreme Court of the Republic of Cuba in order to expedite the prosecution of the crimes known doctrinally as “criminal trifles.” Basically, it implies the reduction of the time so that a given case can be presented to the court —shortening the process—. In legal sciences, there is an old adage that says: “Justice delayed is justice denied”.[7] For this reason, modern criminal proceedings tend to be more agile. The Cuban criminal process is quite expeditious, with no excessive formalities to hinder it. The problem is that the Law 62, of the “Cuban criminal code,” criminally sanctions these trifles; acts whose level of social dangerousness might not require prison sentences as punishment, or at least it is quite questionable that they demand it. Such criminalization of the trivial,[8] obviously increases the number of cases referred to a judge for consideration. This is why these express procedures, which seek to decongest the machinery of justice to the detriment of such basic guarantees as the right to a professional defense, have been created.[9]

The crime of “contempt” is not only a criminal trifle, but its classification as a criminal figure is regularly criticized by international bodies since it is understood as a limitation on the freedom of expression, and a procedure used by several governments to criminalize the most popular opposition. Even the nomen itself is pedantic; the first entry offered by the Royal Academy of the Spanish Language for this word is: “Lack of due respect to superiors”; the second: “Irreverence towards sacred things”. A criminal figure that, from its inception, has violated the idea of equality before the law, and punish an offense against honor —in short, this is what it is all about— on the basis of the passive subject of the affront.[10]

Article 262 of the Spanish Penal Code, which was extended to Cuba in 1879,[11] regulated contempt: “Those who, while a Secretary of the Office or an Authority is in the exercise of his functions, or on the occasion of these, slander, injure or insult him in action or in writing, or threaten him” [sic].

In the current legislation, the figure of contempt is regulated in Article 144.1 of Law 62, “Criminal Code”, as follows:

“Whoever threatens, slanders, defames, injures, insults, or in any way mistreats or offends, in word or in writing, the dignity or decorum of an authority, public official, or their agents or assistants, in the exercise of their duties or on the occasion or because of them, incurs the penalty of imprisonment from three months to one year or a fine of one hundred to three hundred quotas or both.”

This is an updating of that same logic that understands the concept of authority as a community legal asset, and which, consequently, needs the greatest protection. In other words: “we are all equal, but some are more equal than others”. Precisely one of the arguments against the survival of this criminal figure is the democratization of the res publicae —the thing of all, the republic—, the demystification of the political environment conceived as “the sacred,” as that thing against which one cannot be irreverent. In addition, there are the basic principles of equality before the law and freedom of speech.[12]

The wording for contempt in the current legislation contains so many ruling verbs that it is almost impossible to verbally get angry at an agent of authority without incurring the crime of contempt. Cubans—as the majority social group, without seeking to attack anyone’s individuality—tend to shout threats[13] and insults during heated altercations; on the other hand, the Cuban police tend to quickly exhaust the patience and civility that the Cuban being addressed presumably has. This mix of institutional cretinism and the hotheadedness of many Cuban citizens causes contempt charges to proliferate in Cuba.

As the recent case of Denis Solís González illustrates, it can be relatively easy to imprison an opponent of Cuban patience and complete mastery of the vernacular Spanish.

Those who argue that free expression should not be interpreted as a right to offend[14] are not usually so critical when the government itself refers to the political opposition as worms, mercenaries, traitors, ticks, malinches, all unquestionably pejorative terms. The fact is that contempt in Cuba is the monopoly of the offense; a form of coercion so that society shows itself submissive to the coercive and sacred power of the state; the legal regulation of that Fidelist axiom that says: “No rights outside the Revolution”. In Cuba, it is not a question of limits to freedom of expression in the interest of safeguarding the right to honor, but of rules so that this freedom of speech is unidirectional, and so that the safeguarding of honor depends on the ideology of the subject who holds it.

The case of Denis Solís, which was the trigger for events that have questioned, as never before, the alleged cultural hegemony of the Cuban government, is not as evident a disrespect as some in the official media are repeating. The complexity derives precisely from the doubt as to whether the agent of the authority was violating the domicile of the accused.

Contempt is regulated under Title II, “Crimes against the Administration and the Jurisdiction,” which means that “the administration and the jurisdiction” are the legal assets protected by that figure. In other words, the Cuban Criminal Code does not punish those who attack Pedro the police officer, but rather those who attack the police officer as a representative of the institution, and ultimately as the circumstantial personification of the government authority and the executor of legitimate state coercion.[15] However, for that to be the case, Pedro the police officer will have to be acting legitimately as an agent of that force. A violation of domicile would render his action unlawful, and consequently the protection afforded by Law 62 would not cover his actions. The prosecutor could perhaps insinuate some rupture of continuity, since when the captain who is the “victim” of this crime leaves the property, the rapper Denis Solís continues to demonstrate his command of the various entries of the San Isidro vernacular. But the concurrence or not of the pretended rupture could be refuted with interesting arguments coming from the defense lawyer. The problem is that this debate was not possible, and Denis himself probably did not even know the number corresponding to the law that served to prosecute him.

However, so far we have only seen another consequence of facing a trial without legal representation; a situation that it not is extraordinary in the Cuban reality due to the rules that operate in the summary procedure. However, the intervention of the official ideological machinery is evident when the Prosecutor’s Office, without being empowered to do so, disregards an alleged crime of greater gravity[16] in order to prosecute Denis Solís using a (minor) procedure that is more convenient to the State interest that he represents.

In the legal sciences, there is an institution known doctrinally as the “principle of opportunity”;[17] this allows the prosecutor’s office not to bring a criminal action or to abandon it on various grounds. In Cuba, this solution is only possible when using what the criminal investigation bodies know as the 8-3,[18] which constitutes a “principle of regulated opportunity” —a sort of: “you can do what you want at your discretion within the space allowed by law”—. This rule is exceptional. The rule is that the prosecutor must investigate all crimes and prosecute all guilty parties that he knows of by reason of his position.

The evidence used to prosecute Denis Solís, according to the Cuban official media, was the video he made during the incident. In that same video, even before offending the said captain, Solís can be heard referring to Raúl Castro in an unmistakably pejorative manner. This is an aggravated form of the crime of contempt, regulated by Article 144.2, which reads:

“If the act provided for in the preceding paragraph is carried out with respect to the President of the Council of State, the President of the National Assembly of People’s Power, the members of the Council of State or the Council of Ministers, or the deputies to the National Assembly of People’s Power, the penalty is deprivation of liberty of one to three years”.[19]

This implies that, in view of this aggravated modality and the sanctioning framework that it possesses, the ordinary procedure is the appropriate approach and not the summary process or the direct attestation. The only way in which it would be possible to annul the aggravated contempt would be if the prosecutor applied the aforementioned principle of regulated opportunity for the aggravated figure —Article 144.2— and not for the basic figure —Article 144.1— which would be a legal nonsense since that administrative fine regulated by Article 8.3 is justified on the basis of a low level of social danger, and it cannot be an aggravated form of low social danger when eight months of imprisonment are imposed for the basic form —which, in the most elementary sense, would be less serious than the aggravated form—.

Therefore, the Prosecutor’s Office, in a clumsy and illegal manner, dismissed a more serious crime in order to prosecute Solís using a procedure in which the presence of a lawyer was not necessary, and whose speed would send a political message to the rest of the members of the San Isidro Movement.

The crime of aggravated contempt would not be invalidated by the illegitimate action (“violation of domicile”) of the agent of the authority. HH Raúl Castro[20] is not an agent of authority, but rather one of the figures expressly protected by Article 144.2, so that any offense directed against him with animus iniuriandi[21] would constitute a criminal offense. Thus, Denis Solís could have been sentenced to a more severe penalty, but the corresponding ordinary procedure would have required an uncomfortable level of publicity for the system, longer judicial terms, and an undesirable politicization of the judicial act.

“In Cuba the rule of law is supreme” is a recurrent phrase in the interventions of the delegation of the island before the United Nations. The rule of law should not be confused with a democratic state —although they usually coincide—. The category “democratic” refers fundamentally to the access to power and its exercise; the rule of law indicates the subordination or not of all persons —including those in power— to the rule of law.[22] The case of Denis Solís is an example of how the institution charged with “ensuring strict compliance with the Constitution, the laws, and other legal provisions by the organs of the State, the entities, and the citizens,” according to Article 156 of the Cuban Constitution, can bend the rules that are supposed to apply to everyone when the underlying motives are political.

Meanwhile, we are left with the face of Neo when the child reveals to him the secret to twist the spoon: “There is no spoon.”

[1] If the sanctioning framework for an offense goes from six months to two years of deprivation of liberty, the ordinary process would apply, since the maximum limit of the sanctioning framework exceeds one year of deprivation of liberty.

[2] This corresponds to the criminal definition, without considering the possible alterations that the criminal framework may undergo based on modifications of that original framework: committing the crime while on probation; being a repeat or multiple offender; age, and so on.

[3] This is what normally happens. The exception is when a defendant in summary proceedings is represented by an attorney. The presence of a prosecutor is also quite exceptional.

[4] In summary proceedings, the composition of the court is a professional judge, who is placed on the center of the bench and who acts as the presiding judge in all cases, and two lay judges—non-professional, with no legal training—who are placed to the right and left of the presiding judge.

[5] Every direct attestation corresponds to a summary proceeding, but not every summary proceeding can be judged as a direct attestation.

[6] In 2017, the TSP issued Instruction 238, which standardizes the methodology for conducting trials by direct attestation.

[7] It is understood that excessive delay in the resolution of legal disputes undermines the sense of justice and fairness.

[8] Which, from the point of view of criminology, often ends up criminalizing poverty or the marginalized.

[9] The person is not denied legal representation, but given the tremendous speed between arrest and subsequent prosecution, on many occasions the family does not even have time to hire a lawyer (and the defendant cannot do so per se, because he is in detention). Since the presence of a lawyer is not required for a summary trial, the defendant often ends up alone in front of a quasi-omnipotent judge.

[10] To illustrate the above. Crimes against honor, in which the passive subject is a member of civil society, are private crimes. This implies that it is the aggrieved person himself—or his representative—who must initiate the process. However, a similar offense, but one committed against an agent of the authority or against the authority itself—a qualified passive subject—is a public crime that can be prosecuted ex officio by the prosecutor’s office, with significantly higher penalties.

[11] It was in effect until 1938, when the 1936 Social Defense Code entered into force.

[12] The limits on the right to freedom of expression would still be marked by crimes against honor, but they would not be imposed on the passive subject of the offense.

[13] Which, statistically speaking, are rarely carried out.

[14] Among whom I find myself. However, there are other legal avenues for claiming an eventual offense against one’s own honor.

[15] Legitimate insofar as it is permitted by the law, legal; not because the monopoly on violence is legitimate.

[16] In view of the framework of sanctions.

[17] In the United States, there is a very serious—almost abusive—use of this institution.

[18] In reference to the paragraph that regulates the possibility of imposing an administrative fine for the commission of crimes for which the penalty is no more than three years’ imprisonment. This avoids the need to bring the case before a judge and relieves the burden on the judiciary. Although in many cases it is used to close complex cases by threatening the person involved that the consequences of going to trial would be much worse for them.

[19] Again, the sacred, that in front of which one cannot be irreverent. Curious, since all these positions are, in theory, the representation of the sovereignty that I, as a people, hold; so they are my proxies, and I am the mandator. But even in this theoretical design the pre-Revolutionary French idea that the sovereigns are they persists.

[20] His Holiness.

[21] It is not enough to use a term that is offensive; the criminal type requires that the intention be to offend the recipient. Phrases such as “Down with Díaz-Canel,” or “Raúl is a dictator,” would not constitute the offense of contempt because they are understood as political opinions; nor would they be adjectives that denote the inefficiency of a body such as the police or another organ of any of the State powers, for example, “inept,” or referring to the police as “henchmen,” since that would imply a criticism of the repressive methods… although everything is debatable in court. The criminal type is based on an animus iniuriandi, or intention to slander.

[22] A State where the rule of law is the reality does not necessarily have to be democratic.

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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