Democratic Spaces Condemns the Cuban Regime's Announcement to Prosecute Cubans Living Abroad for Criticizing the Situation in Cuba

Democratic Spaces condemns the threats uttered by the Cuban regime to prosecute Cubans living abroad through summary trials in absence. We consider this announcement as a form of intimidation from a regime that not content with trampling on the human rights of people in the island for 62 years is attempting to silence Cubans living abroad. We call upon the Government of Canada whose Charter of Rights and Freedoms protects freedom of thought, opinion and expression, and freedom of peaceful assembly and association to categorically reject the persecution of Cuban Canadians based on their ideas and stance in defence of fundamental human rights, democracy, and inclusion in the island. 

On May 14, 2021 José Luis Reyes Blanco, Head of Criminal Proceedings from the Office of the Prosecutor´s Office and Humberto Lopez, government spokesperson announced on the ¨Hacemos Cuba¨ show the regime´s intention to prosecute Cubans abroad who ¨finance, convene, coordinate¨ or support in any form possible what the regime calls ¨subversive acts, ¨ but the rest of the world consider universal human rights. For the regime, Cubans living abroad who take part in supporting their compatriots in the island who take to the streets to peacefully claim their fundamental human rights such as freedom of thought, freedom of opinion, freedom of peaceful assembly will be prosecuted and extradited. With this announcement the regime shows it is in panic amid the prospects of popular protests across the country in opposition to the political, economic, and social catastrophe caused by a regime that imposes continuity of its obsolete one-party dictatorship and centralized economy and represses calls for democratic change. 

Can the Cuban regime extradite Cuban Canadians over political views and for their support of those inside Cuba leading the peaceful struggle for human rights, inclusion, and the rule of law?

The short answer is NO. 

 While it is puzzling why countries such as Cuba and Nicaragua, two nations under dictatorial regimes are considered among Canada’s extradition partners, an overview of Canada’s Extradition Law EXCLUDES grounds for extraditions when they are made for the purpose of 

-      “Prosecuting, or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.” 

-       The conduct in respect of which extradition is sought is a political offence or an offence of a political character;

 Also, extradition from Canada also considers the principle of Dual Criminality which states that 

“The requesting country must establish that the offence for which the person is sought would have been a crime if committed in Canada (“dual criminality”) and which could have been punishable by two or more years of incarceration.”

 In other words, the Cuban regime would have to prove that fundamental human rights such as the right to freedom of expression, freedom of thought, freedom of assembly, freedom of association are crimes in Canada as they are in Cuba. 

 What the Cuban regime calls “crimes,” Canada considers them as Fundamental Freedoms and Democratic Rights in the Canadian Charter of Rights and Freedoms.

 References:

General Overview of the Canadian Extradition Process (https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html)

The Canadian Charter of Rights and Freedom (https://www.mcgill.ca/dise/files/dise/cdn_rights.pdf)

Cuban Laws invoked on May 14 are in Violation of International Standards and Laws on Human Rights 

 The laws referred to by the regime to prosecute Cubans living abroad in retaliation for their support of peaceful human rights activists in Cuba lack legitimacy and are contrary to international standards. 

 Law 88 or Law of Reaffirmation of Cuban Dignity and Sovereignty

 Provisions included in Law 88 have been used on several occasions to restrict the legitimate exercise of the fight to freedom of expression, especially Article 7.1 used to justify the imprisonment of independent journalists. Law 88 was used to charge and sentence many of those arrested during the March 2003 crackdown on dissidents considered by Amnesty International as prisoners of conscience. 

Restrictions on Freedom of Expression in Cuba. Amnesty International, 2010 (https://www.refworld.org/pdfid/4c2c444a2.pdf), p. 4. 

Public Disorder. Article 200 of the Cuban Penal Code. 

“1. Any person who, without justifiable cause raises the alarm or makes threats against the general public in public places or at shows or large meetings, shall be subject to between three months and a year’s imprisonment or a fine... or both.

2. If the acts referred to in the previous paragraph are carried out with the intention of causing panic or disorder, or in any other way affect public order, the punishment will be imprisonment of between one and three years or a fine... or both.”.”

Criminal code laws such as Public Disorder have been considered by Amnesty International as:

¨Worded and interpreted by courts in ways that allow for the imposition of unlawful restrictions on freedom of expression and “commonly used to punish free speech and criticism of authorities¨ in Cuba. 

 Furthermore, the United Nations Human Rights Committee has consistently condemned violations of the right to freedom of expression committed by states [such as Cuba] by arresting or detaining individuals for alleged threats to public order without providing adequate evidence that such measures were necessary. ¨

Reference: Restrictions on Freedom of Expression in Cuba. Amnesty International, 2010 (https://www.refworld.org/pdfid/4c2c444a2.pdf), p. 13. 

 Article 62 of the Constitution of Cuba . 

 “None of the freedoms which are recognized for citizens can be exercised contrary to what is established in the Constitution and law, or contrary to the existence and objectives of the socialist state, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle can be punished by law.”

 Even in instances in which laws refer to certain rights and freedoms “their exercise is subject to the ideology embrace by the state.” Amnesty International 

Most Sections of the Cuban Penal Code have Been Deemed in violation of Fundaental Human rights and Freedoms. 

 Provisions in the Cuban Penal Code such as enemy propaganda, contempt of authority, rebellion, acts against state security, clandestine printing, distribution of false news, pre-criminal social dangerousness, Illicit associations, reunions, and demonstrations, resistance and defamation and libelhave used the Cuban government against its critics have been considered by Amnesty International as intended to “restrict the peaceful exercise of freedom of expression, and freedom of peaceful assembly and association.” 

 The Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) has stated that “numerous sections of the Penal Code are used to suppress journalists and others who speak out against the government. Many of the offences, which subject the accused to prison terms, are vaguely defined so as to apply to a wide range of speech.” The lack of independence and impartiality of the judiciary means that these vaguely worded offences have been used to punish the legitimate exercise of freedom of expression. In some cases those found guilty have been sentenced to lengthy prison terms.

 Reference: Restrictions on Freedom of Expression in Cuba. Amnesty International, 2010 (https://www.refworld.org/pdfid/4c2c444a2.pdf)

 Offending National Symbols. Article 203 of the Penal Code

 In Cuba, contemporary artist and human rights activist Luis Manuel Otero Alcantara is currently charged with offending national symbols over an artistic peaceful performance involving the Cuban flag. However, article 203 of the Cuban Penal Code infringes on the right to protest. 

 As seen in the cases of Olena Shevchenko, Ukrainian human rights activist and Evan Mawarire, a Zimbabwean pastor, both charged for “offending the national symbols” of their respective countries, these kinds of laws are contrary to international human rights laws. 

 Article 203 of the Cuban Penal Code violates the “Johannesburg Principles on National Security, Freedom of Expression and Access to Information: Article 19,” which states in Principle 7.C:

 “No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.”

Reference: “Johannesburg Principles on National Security, Freedom of Expression and Access to Information: Article 19,”(https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf), p. 10. 

Article 119 of the Cuban Penal Code: “Mercenarism” is contrary to the International Covenant on Civil and Political Rights. 

 Even though this article refers to people working for foreign private armies, it is used arbitrarily by the Cuban regime against all human rights groups, civil society organizations and independent journalists in Cuba receiving foreign funds. 

 The restrictions to ban foreign funding by the Cuban regime is an essential tool used by authoritarian regimes around the world to flout the right to freedom of association. However, the right of civil society organizations to receive foreign funding is legitimate under international and regional laws. 

 The United Nations Human Rights Council, the body in charge of interpreting the International Covenant on Civil and Political Rights has stated that:

 “The duties of the states to protect freedom of peaceful assembly extend to actions beyond the immediate context of the meetings such as the mobilization of resources.” 

Reference: International Covenant on Civil and Political Rights. Number 37 (https://www.movedemocracy.org/defending-democratic-space/right-to-receive-funding)

 “The ability of civil society organizations to access financing and other resources from domestic or foreign sources is a vital part of the right to freedom of peaceful assembly. This is due to the crucial importance of resources to exercise in an efficient manner the right to peaceful association.”

 Reference: A/HRC/23/39, paragraph 20. April 24, 2013 (https://www.movedemocracy.org/defending-democratic-space/right-to-receive-funding)