Cubalex’s Recommendations to the Parliament of the European Union

Letter #31 by Cubalex.

In July 2019, Civil Rights Defenders invited Cuban human rights defenders and civil society organisations to contribute with texts on how the European Union should work towards Cuba. This letter is written by Cubalex.

Cubalex’s Recommendations to the Parliament of the European Union

Pursuant to the framework of the PDCA between the European Union and the Cuban government, Cubalex recommends that the political dialogue between the European parliament and the Republic of Cuba includes the opportunity to develop training activities for judges, prosecutors, law enforcement, and prison officials.

Such activities would be possible under item c) in section 4 of Article 22 of the PDCA, which facilitates cooperation for the purpose of implementing the human rights instruments and educational protocols that apply to each of the parties as well as any recommendations made by the United Nations human rights agencies that the parties may have accepted.

Cuba is one of the State parties to the 1995 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 1997, the Committee Against Torture expressed concern about the lack of specific educational training for judges, prosecutors, law enforcement, and prison officials and recommended that the State to create an updated and ongoing global education and training program. In 2012, it recommended the State to prepare and implement education programs to ensure that judges, prosecutors, law enforcement, and prison officials are fully aware of the Convention’s provisions, and likewise that the state develop and apply a methodology to evaluate the efficacy and effects of the education programs on reducing the number of cases of torture and abuse, and ensure that all relevant personnel receive specific training on the Istanbul Protocol.

Article 10 of the Convention mandates that the State ensures the inclusion of comprehensive education and awareness with regard to the prohibition of torture in any professional training for law enforcement, whether civil or military, medical personnel, public officials, and other persons who may be involved in the custody, interrogation, or treatment of any individual who is the subject of any form of arrest, detention, or imprisonment, and that this prohibition is included in any rules or instructions that are issued with regard to the duties and functions of these individuals.

The proposed training also seeks to provide awareness and education in matters involving human rights, democracy, and a culture of peace and to strengthen democratic and human rights institutions as well as the legal and institutional frameworks in place for the promotion and protection of human rights, as provided in items e) and f) in section 4 of Article 22 of the Political Agreement.

With regard to the foregoing, the European Parliament could propose that the criminal law review process include judicial cooperation as one of the activities to be undertaken pursuant to the Agreement, for the purpose of reconciling these with the six international human rights agreements to which Cuba is party to, thereby facilitating their appropriate application within the national territory and compliance with the state’s human rights obligations, particularly those involving due process.

Cubalex recommends that the European Union’s dialogues with the Cuban state include the possibility of organising electoral observation missions for the 2023 elections to elect the National Delegates and the second-degree election of the members of the State Council and the president of the Republic of Cuba.

Observing the Cuban elections would be possible under the first section of Article 23 of the PDCA on “good governance,” which establishes that cooperation within the scope of good governance should be based on strict compliance with the principles of the United Nations Charter and of international law and, under the second section, which provides that such cooperative activities could include, among others, activities that are mutually agreed upon by the parties for the purpose of promoting transparent, accountable, efficient, stable, and democratic institutions.

The Cuban state recently enacted a constitutional reform which also contained a reform of the electoral system: The new electoral law will be applied in the 2023 elections, when the duties of the National Assembly of People’s Power will be renewed. Under the previous system of public voting (by a show of hands), community-led control over the electoral process by mass and social organisations inhibited the citizens from stating their political preferences and obtaining information from diverse sources, and therefore impeded plural and open deliberation on matters of public interest.

It would be appropriate and recommendable for the European Union to avail itself of the electoral observation mechanism to verify that the reform implemented by the Cuban state removes any restrictions on its citizens’ political rights. This activity would comprise part of the joint work between the European Union and the Cuban government for the purpose of achieving more inclusive political processes in which all citizens can truly participate, as provided in item f) in Section 2 of Article 23 of the PDCA.

Electoral observation could enable the European Union to determine whether the current prohibition against conducting electoral campaigns prevents citizens with political aspirations from carrying out activities to compete for office, such as seeking out resources and votes. Currently, citizens cannot directly run for office at the national level nor do they have access to any legal mechanisms to openly create and organise political parties. In this regard, the European Union could recommend that the state reconcile its legislation with international standards in terms of freedom of opinion, expression, and association in the exercise of political rights.

The European Union could also exchange experiences and training in the legal and judicial level, as well as information related to the legal and legislative systems, as provided in items c) and d) in the second section of Article 23 of the PDCA.

The new constitution confers constitutional and permanent status to the new electoral body but does not ensure its functional independence due to the fact that its members can be designated by a political body that concentrates all the state’s powers, a fact that impinges on this body’s independence and impartiality. The officials who comprise the main body, who can be active or service members of the military, are not prevented from occupying directive positions within political party organisations. This situation affects the new Electoral Council’s independence and impartiality, and therefore, detracts from the transparency of the Cuban elections. These officials do not have any professional experience in the electoral realm either.

An audit of the electoral registry would allow the European Parliament to promote the exchange of best practices within the issue of good governance, accountability, and management transparency at all levels, a form of cooperation that is addressed in item e) in the second section of Article 23 of the PDCA. The Electoral Registry was affiliated with the electoral body, but the law does not specify which state institution is responsible for this registry nor does it establish the requirements for these electoral officials. It is currently under the Ministry of the Interior, a military institution. Under the new regulations, none of the electoral bodies is responsible for verifying the electoral registry, rather the law confers this function to mass organisations.

The proposed activities would also play a part in strengthening institutions and the Rule of Law, as well as in modernising public administration. These cooperation objectives are stipulated in Articles 24 and 25 of the PDCA between the countries belonging to the European Union and Cuba.

The European Union could facilitate a rapprochement between Cuba and the Organisation of American States (OAS) as part of the cooperation activities described in item g) of the Political Agreement, which allows the parties to develop mutual joint interest initiatives related to relevant multilateral forums.

Cuba continues to be a member state because its exclusion in 1962 did not mean losing its status, nor did it ever exercise the right to denounce the Constitutional Charter and therefore must accept the regulations and obligations assumed, particularly in terms of the human rights that are applied to all the parties belonging to the OAS by virtue of the principle of legal equality among the states.

During the last four years, the Cuban state demonstrated its interest in participating in the OAS, a regional organisation in which the European Union acts as an observer. It participated in the VII and VIII Summits of the Americas held in Panama and Peru in April 2015 and 2018, respectively.

It would be advisable for the European Union to include human rights officials and experts within the inter-American system in the cooperative activities proposed by Cubalex so that their recommendations may play a part in Cuba’s gradual integration and full participation in the OAS on a basis equal to that of the rest of the countries in the region.

About Cubalex

Cubalex is a non-profit association founded in 2010 in Havana. It was registered in the United States as a charitable organisation in June 2017, when most of the team members were forced into exile. Its mission is to defend and promote human rights as a mechanism of social transformation, and to achieve the reestablishment of democracy and the Rule of Law in Cuba. Its work focuses on documenting human rights violations, mainly within the Cuban context. Its members are experts on the Cuban legal system, as well as national and international reporting mechanisms. The organisation has experience in identifying and examining the legal regulations that govern human rights in Cuba and in analysing their compatibility with international standards.