The Cuban Legal System - Justice for All - Coursework Example

THE CUBAN LEGAL SYSTEM The Cuban Legal System: Justice for All? The Cuban Legal System: Justice for All? The island which in 1492 Christopher Columbus called Juana, mistaking it for a landmass in Asia, was to become not only a colony of Spain but the center of Spanish government in the New World in post-conquest years. "The story of Cubas struggle for liberation from four-hundred years of Spanish domination is one of the great epics in history,” writes historian Philip S. Foner in his 1962 book, A History of Cuba and its relations with The United States, Vol. 1. With the end of the Spanish American War, and the signing of the Treaty of Paris on December 10, 1898, Cuba finally gained its independence from Spain but was left under U.S. military occupation. Cuba’s long and often strained association with the U.S. and a series of U.S. backed governments would lead to the 1959 Cuban Revolution and the current 50-year reign of dictator, Fidel Castro. The web article, Crime and Society: A Comparative Criminology Tour of the World summarizes the Cuban legal system as a composite of the three major stages of the country’s history, ending in what we know today as a socialist legal state. In 1973, the government promulgated the Law of Judicial Organization, establishing a hierarchical and more formal court system, replacing private law practice with law collectives-- strengthening emphasis on "socialist legality. Cuba’s civil law emphasizes written codes rather than precedent as the source of law. It utilizes an inquisitorial system of criminal procedure similar to that of Spain and France, with a smattering of Anglo American law including habeas corpus and a separation of courts and prosecutors quite uncharacteristic of Marxist-Leninist states. The article also sites key elements of Cubas "socialist legality" as an emphasis on substantive rather than juridical measures of justice; the use of law as a pro-active tool for socialist development; limited use of formal legal mechanisms for the resolution of private disputes; the use of informal "social courts" to resolve conflicts such as housing and labor disputes; direct citizen involvement in the judicial and crime control, and a system of state-organized law collectives to provide low-cost legal services nationwide. Regarding the latter, Raymond J. Michalowski writes of the non-adversarial system,“These attorneys, as intermediaries between citizens and the state, often found ways to utilize the formal framework of substantive and procedural laws to represent clients interests despite an official ideology that emphasized non-adversarial lawyering.” (Raymond J. Michalowski, Law & Society Review, Vol. 29, 1995, page 65 ) The revolution and rise of Castro no doubt had irrevocable bearing on the legal system of the country. The island has suffered under a long series of harsh dictatorial regimes, including Fulgencio Batista, who, backed by the U.S., supported laws favorable to the rich and powerful. Conversely, upon assuming power, Castro’s communist/socialist regime immediately targeted the legal system, passing the Urban and Agrarian Reform Laws, which respectively confiscated private rental properties and resold them to tenants, and redistributed large tracts of land previously owned mostly by Americans. Yet despite its long line of dictators, Cuba has nonetheless a well established legal tradition. “Prior to the Revolution, Cubans lived under one of Latin America’s most effective judiciaries.” (Mario-Diaz Cruz III) Traditions, according to Diaz-Cruz, were based on Spanish Law grounded in Roman and Napoleonic legal principles. Its 1940s Constitution was held as a model in Latin America. Cuba has had five constitutions since its independence from Spain; the latest version a draft in 1992. Reading the basic document, written in 1976, the communist political and cultural focus is obvious in its preamble. “WE, CUBAN CITIZENS, heirs and continuators of the creative work and the traditions of combativity, firmness, heroism and sacrifice fostered by our ancestors... by those who promoted, joined and developed the first organizations of workers and peasants, spread socialist ideas and founded the first Marxist and Marxist-Leninist movements;”...( Cubanet Documents, Constitution of the Republic of Cuba, 1992) Yet the same document acknowledges past cultures as well: “by the Indians who preferred extermination to submission; by the slaves who rebelled against their masters; by the patriots who in 1868 launched the wars of independence against Spanish colonialism and those who in the last drive of 1895 brought them to victory in 1898...”(Cubanet Documents) The legal tradition that Cuba’s constitution appears to assume hardly supports the individual rights of the people it praises in its preamble. “The denial of basic civil and political rights is written into Cuban law. While Cubas domestic legislation includes broad statements of fundamental rights, other provisions grant the state extraordinary authority to penalize individuals...”(Human Rights Watch, Report to the UN, June 1997) In terms of legal tradition, it would seem that Cuba, which in the early days included precepts of the Spanish, French and even U.S. traditions, has veered from its legal path toward governing documents more in line with communist nations than those of western democracies, many of which employ aspects of socialism within their cultures. “Thirty years of development guided by Marxist legal theory, and shaped by close ties to the former Soviet Union have added a clearly socialist character to the Cuban legal system.” (World Factbook of Criminal Justice Systems, Cuba, Ray Michalowski) Michalowski states that in 1956 vague provisions providing for the arrest of persons committing anti-revolutionary acts and summary trial procedures were written into the law. Not a lot has been written about actual criminal codes in Cuba. Probably the most enlightening and concise is found in, Crime and Society: A Comparative Criminology Tour of the World: Under Cuban law, an act is a crime only if it is prohibited by the law and is socially dangerous or harmful (socialimente peligrosa). Violations of law that do not rise to the necessary level of social harm are considered to be infractions (contravenciones), that is, a noncriminal citation offense. Crimes in Cuba are divided into felony and misdemeanor offenses. Felony crimes are those with a potential sentence exceeding one year imprisonment or a fine of more than 300 cuotas. (Cuotas are units of a fine that have variable value. Thus, one person may be subject to a fine of 100 cuotas at one peso each while another may be subject to the same fine but at a rate of two pesos per cuota.) Offenses that meet this standard are prosecuted in provincial courts. Less serious misdemeanor offenses are adjudicated in municipal courts and carry maximum penalties below the one-year/300-cuota level. Felony-equivalent crimes in Cuba encompass a standard array of offenses against persons or property including murder, rape, assault, death or injury by vehicle, robbery, burglary, larceny, vehicle theft, arson, and drug trafficking. Except for murder, rape, and robbery, each of these offenses also has a less serious, misdemeanor equivalent. In addition to standard crimes against persons, property and social order, the Cuban penal code enumerates various offenses against socialist organization. Central among these are misuse of employment in a state enterprise for illegal personal gain (malversacion), obtaining money or property illegally channeled from some state economic venture (receptacion), trading in foreign currency (trafico de divisas), slaughter and distribution of livestock outside the socialist distribution system (sacrificio ilegal), and attempting to leave the country without complying with formal emigration requirements (salida ilegal). Rather than being occasional crimes, these offenses constitute a regular part of the criminal case load in Cuba. Outside criticism against the Cuban legal system generally focuses on the above codes which are considered authoritarian and an infringement on personal freedoms. Yet some, including misuse of employment in a state enterprise for illegal personal gain, and obtaining money, etc. may find comparable restrictive laws within U.S. codes. Cuba does practice capital punishment, but rarely. The death penalty is reserved for the most heinous crimes which is generally consistent with U.S. states still employing execution. Since a moratorium was instituted on executions in 2000, only three have taken place. In 2003, to harsh condemnation from world figures, three men were executed after being found guilty at summary trial of hijacking a ferry and threatening to kill the hostages. (IPS, Patricia Grogg, December 2, 2008) Responding to criticism, the Cuban government is currently looking into alternatives to the death penalty. Correctional labor, a more draconian form of community service, and public chastisement (la amonestacion) are also commonly used for lesser crimes along with fines. Policing in Cuba consists of a multi-layered infrastructure under The Ministry of Interior, led by Raul Castro, which maintains all state security much like the FBI but with far fewer legal restrictions. In addition to the routine law enforcement functions, it maintains surveillance of citizens through informants for the purpose of actively suppressing political opposition. Local organizations such as Committees for the Defense of the Revolution (CDRs) bringing dissenters into lockstep with the party line. The National Revolutionary Police (PNR), operating under the Ministry provides uniform policing and handles everyday criminal investigation, crime prevention, juvenile delinquency, and traffic control through municipal groups, each with its own chief. “Police may use necessary force to apprehend suspects and to defend their person or that of any other citizen. Cuban law places few formal limits on police discretion to stop or interrogate citizens. This reflects Cubas character as a civil law state with an inquisitorial judicial system.” (Crime and Society: A Comparative Criminology Tour of the World) The article reveals that despite other restrictive legal procedures, Cuban law does not allow violence or force in obtaining a confession and admits that no defendant is required to testify against him or herself. Suspects can make formal oral statements if they wish, including confessions. As in the U.S., minors under 16 must have parents present. In conclusion, then, what we have in Cuba is a legal system tailored to suit a specific political and social ideology—a dualistic system that tries, on many levels, to mead out justice and on others to preserve the political and social status quo. But is this justice? If arbitrary arrests and detention remain a practice, how does our own critical view of such behavior settle with arrests justified under the Patriot Act? What about detainees at Guantanamo, held without trial? The conclusion of justice, then, may lie in the very ideological perspective of the person judging. THE END Source Bibliography Between Citizens and the Socialist State: The Negotiation of Legal Practice in Socialist Cuba, journal article, Raymond J. Michalowski, Law & Society Review, Vol. 29, 1995, page 65 Challenges for a Transitional Judiciary in Post-Castro Cuba, Mario Díaz-Cruz, III, pg. 304 http://lanic.utexas.edu/project/asce/pdfs/volume12/diazcruz.pdf Cubanet Documents, Constitution of the Republic of Cuba, 1992 http://www.cubaverdad.net/cuban_constitution_english.htm III. IMPEDIMENTS TO HUMAN RIGHTS IN CUBAN LAW, Human Rights Watch, Report to the United Nations, June, 1997 http://www.hrw.org/legacy/reports/1999/cuba/Cuba996-03.htm WORLD FACTBOOK of CRIMINAL JUSTICE SYSTEMS, Cuba By Ray Michalowski,Professor and Chair, Dept. of Criminal Justice, Northern Arizona University http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjcub.txt Crime and Society: A Comparative Criminology Tour of the World: North America, Cuba http://www-rohan.sdsu.edu/faculty/rwinslow/namerica/cuba.html IPS, The Story Underneath, Death Penalty-Cuba: No Abolition in Sight, Patricia Grogg, December 3, 2008 http://ipsnews.net/news.asp?idnews=32861 . Read More