Washington DC, June 16, 2022 – On May 15, the National Assembly of People’s Power of Cuba approved a new Criminal Code that represents a threat to civil society and independent journalism on the Island, since -through ambiguous language – it provides restrictions and sanctions on the exercise of activities of human rights defenders, jurists, activists and journalists. The norm, which was voted on in an extraordinary session, will enter into force 90 days after the date of its approval, after it is published in the Official Gazette of Cuba.

The International Institute on Race, Equality and Human Rights (Race and Equality), learned about the draft of the document, which appears on the website of the Supreme People’s Court of Cuba [1], and identified six points of the draft Penal Code that cause great concern, because it violates the exercise of fundamental rights such as freedom of expression, assembly, and peaceful association.

1. Types of ambiguous penalties

The new Criminal Code maintains ambiguous penalties to punish conduct contrary to the “internal security of the State”, among which are crimes against the constitutional order, sedition, propaganda against the constitutional order, national or foreign financing that has as its “purpose to pay for activities against the State and its constitutional order” [2], among others. These penalties ,“because they are extremely vague, violate Cuba’s international obligations, and make them invalid as a legal basis for arrest, which makes it impossible […] to invoke any legal basis to justify the detention, making it arbitrary [3]”

Another crime that could also explain the ambiguities of the norm is the one that refers to public disorder. In accordance with the Law, acts that are considered “provocative” will be sanctioned, without specifying the scope of this terminology. There are still many doubts about the new Penal Code, which, although it incorporates certain modifications, maintains current criminal penalties that have been the subject of concern and recommendations by human rights bodies such as the Inter-American Commission on Human Rights (IACHR). The lack of clarity that has caused so much damage to Cuban activists, independent journalists and artists continues.

2. Threats against freedom of association and assembly

The new Penal Code limits the exercise of the rights of free association and assembly, and in some cases increases penalties. For example, article 274 of the law increases the penalties and fines for those who are part of organizations that are not authorized to form, that is, for members of independent civil society organizations, whose assets could also be confiscated.

This measure, which is also ambiguous, would be regulated in Cuba through the Demonstration and Meeting Law, but this initiative, which would be key to understanding the scope of this penalty, has been shelved since 2020.

Another point that draws the attention of Cuban human rights activists and defenders is that related to article 143 of the new Code, which states that any person, by himself or on behalf of a non-governmental organization, who supports, encourages, finances, provides , receives or has in his possession funds, material or financial resources, with the purpose of defraying activities against the State and its constitutional order, will incur a sanction of deprivation of liberty from four to 10 years.

3. Crimes against electoral processes and democratic participation

The new Code also penalizes those who “promote or induce abstention among people with the right to vote”, punishes people who “show disrespect towards electoral authorities or candidates during the development of elections or processes of democratic participation” (art. 431.2.c), and also penalizes those who “disseminate by any means… expressions that denigrate electoral councils or structures.

4. Death penalty

The norm that was approved in an extraordinary session maintains the death penalty as an option for criminal punishment, and the crimes in which this sanction can be imposed went from 19 to 24 in the new Code. This is totally contrary to the recommendations of the human rights organs that have explicitly suggested that Cuba abolish this figure from its legislation [4].

5. Criminal responsibility of minors

Another point that generates concern among the Cuban population is the one that refers to criminal responsibility, which in the new Code is maintained from the age of 16, ignoring the best interests and the special care that minors require, in light of of international human rights standards.

6. Femicide not included

The art. 344 of the new Criminal Code punishes murder with a prison sentence of 20 to 30 years, life imprisonment or death when the act is committed “due to gender discrimination”, and art. 345.1 considers the same sanctions when “a woman is killed as a result of gender violence”; however, nowhere was femicide included as an autonomous crime, despite the fact that women’s organizations residing on the Island have reiterated this request several times.

Each of these points reflects the ambiguity and lack of guarantees that people in Cuba face when exercising their rights to freedom of expression, protest and peaceful association. The new Penal Code intensifies the sanctions, placing activists, artists, jurists, independent journalists, human rights defenders, and anyone who speaks out against the government, or simply claims their rights, at special risk.

From Race and Equality, we call for the State of Cuba to comply in good faith with the provisions of the Universal Declaration of Human Rights, and we urge the international community to observe how the implementation of this norm progresses, which has generated so much concern in the Cuban population.

[1]Criminal Code Project. Available at https://raceandequality.org/662 _

[2]Draft Penal Code, January 19, 2022, Art. 143, available at

https://www.tsp.gob.cu/sites/default/files/documentos/ACP%20EN%20WEB.%2019.01.2022.pdf

[3]Working Group on Arbitrary Detention, Opinion 4/2020, regarding Aymara Nieto, Eliecer Bandera, Humberto Rico, José Pompa, Melkis Faure , Mitzael Díaz and Silverio Portal, para. 135, UN Doc. A/HRC/WGAD/2020/4 (June 26, 2020). Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Detention/Opinions/Session87/A_HRC_WGAD_2020_4_Advance_Edited_Version.pdf

[4] Concluding observations CAT 2022. Paragraph 38. Available at : https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CUB/INT_CAT_COC_CUB_48650_S.pdf