WOLA: Advocacy for Human Rights in the Americas

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7 Jul 2022 | Commentary

5 Concerns About Cuba’s New Penal Code

On May 15, 2022, Cuba’s National Assembly (Asamblea Nacional del Poder Popular) approved a new penal code, which will come into force in mid-August. The new code replaces the current one—Law 62 of 1987—and it reportedly intends to modernize the Cuban penal system after the approval of the 2019 Constitution. While it has some positive provisions, including classifying domestic and gender-based violence as crimes, and further avenues to address discrimination, the new code also makes it possible for the regime to further limit basic freedoms such as public protests. 

The draft code was written by Cuba’s Supreme Court (Tribunal Supremo) and serious concerns remain over the lack of transparency and public consultation around the process. This stands in stark contrast with the process around the drafting and approval of the country’s Family Code, which was subject to a process of consultation and will be put to a referendum later in 2022. 

Below are 5 concerns to keep in mind about the new penal code:

1. It increased the number of offenses punishable by death and life imprisonment

The new code includes 24 crimes where the death penalty can be applied, raising the number from the previous code. Offenses punishable by death are mostly related to issues involving state security. These include taking hostage as well as acts against the safety of maritime navigation, airports and aviation vehicles.

Furthermore, it includes torture as a crime punishable by life imprisonment after the ratification of the Convention against Torture by the Cuban government. It remains to be seen how this charge would be implemented following victim and civil society reports of torture by state officials of those detained following the mass protests that took place on July 11, 2021. 

Even though the death penalty was included in the previous penal code, Cuba has had a moratorium on its use and has not applied it since 2003. This change represents a significant step backwards for the rights of those accused of crimes and those deprived of their liberty. It places Cuba among the less than 30 percent of countries worldwide that still apply the death penalty, including the United States, and is a direct violation of the right to life. 

2. It includes punishment for individuals or organizations receiving foreign funding

Article 143 is included in the section of the code that targets violations of state security and is punishable with sentences ranging between 4 and 10 years in prison. It targets individuals who receive foreign funding that may be acting on their own or on the behalf of “non-governmental organizations, international institutions, associations or any natural or legal person of the country or of a foreign state”—criminalizing both public and private funds.

Additionally, what the code defines as “financing” is extremely vague, which could potentially allow the government to arbitrarily sanction any resources that aim to support or encourage actions against the State or the constitutional order.” Given what was already a shrinking space for civil society on the island, the fact that the code leaves room for interpretation creates considerable risks to any person or entity that receives external funding (excluding family remittances) depending on how the Cuban government chooses to pursue any one of them. This addition to the penal code also gives cause for alarm because it criminalizes both issuing and receiving funds, potentially allowing authorities to prosecute Cubans living abroad.

3. It further prevents citizens from challenging authorities 

Article 120 of the code explicitly states that actions that prevent “in whole or in part, even temporarily, the President, Vice-President of the Republic or the higher bodies of the State and the Government from exercising their functions” are considered a crime. It also makes it a crime to attempt to change any aspect of the Cuban Constitution or the form of government established by it. Deeming a person’s practice of their own rights (guaranteed by Cuba’s own constitution) as arbitrary if they are perceived to be a direct violation of Cuba’s political system can be a direct threat to any form of public dissent or expression. This could include any form of peaceful assembly or protest.

The lack of legal mechanisms to influence, change, or amend the Cuban constitution or to petition for the removal of public officials already limits the possibility of the people to have a direct say in their government. This additional criminalization of “dissent” effectively shuts the door to any opportunity for change from grassroots organizing in the country.

4. It codifies the criminalization of the use of social media

One of the few spaces left unmanaged officially by the Cuban government, the Internet and social media channels are now included in the penal code. The code targets actions considered to have contributed to crime, particularly when related to organized and transnational crime organizations. 

Although there is a limited level of organized and transnational criminal activity in the country, it is a concern that authorities could use this provision to curtail activists’ communications and activity online.

5. Femicide is not covered despite the inclusion of other crimes on the basis of gender

One of the aspects that is worth highlighting in this code is its inclusion of gender-based crimes, including rape and sexual assault. According to an analysis by Yo Sí Te Creo, a platform created to support women victims of violence in Cuba, the structure of the code also removes discrimination based on gender and sexual orientation in a way that the former code does not. Article 344 of the new code designates prison sentences ranging bwteen 20 and 30 years for murder “due to gender discrimination” or when a woman is killed as a result of gender violence. 

However, one key act of violence is not included in Article 344—femicide. It is not explicitly mentioned anywhere in the legislation despite several feminist organizations on the island  actively advocating for its inclusion as a separate crime. United Nations experts of the Committee against Torture also mentioned the need to include femicide in order to provide “proper protection” for women during its review of the new criminal code. 

Yo Sí Te Creo recorded 34 femicides in 2021.