Cuentapropistas in court

Cuba’s Supreme Court issued a decision about court cases involving entrepreneurs, trabajadores por cuenta propia, that clarifies how their cases should be handled.

It can be found in the Gaceta Oficial, the January 23 issue, decision number GOC-2019-89-O2. There is also an explanatory article on the court’s website (didn’t know they did these) written by Liliana Hernández Díaz, the chief judge of the court’s division that handles economic matters (Presidenta de la Sala de lo Económico).

The decision is procedural. Apparently there have been many cases involving disputes between cuentapropistas, and between them and clients and creditors. The decision clarifies that these cases should be heard and where they should be assigned.

It also says that in contract disputes, as the judge puts it in her article, that when it comes to contract disputes, cuentapropistas “litigate under equal conditions and respect for rights and procedural guarantees as state enterprises and other legal entities and economic actors.”

So while they remain – for now – individuals with licenses as opposed to legally constituted businesses with personalidad jurídica, they have standing in court when it comes to contract disputes.

A conviction in Havana with "due process" (Updated)

To its credit, the Trump Administration has maintained law enforcement cooperation with Cuba, holding regular dialogues and even building on some of the work of its predecessors. This fits with its border control/homeland security emphasis, and it surely rubs some of its political supporters the wrong way.

We now have details on the most notable instance of this cooperation, thanks to this Miami Herald story on the conviction of a defendant for a 2015 murder in Palm Beach. What is unusual is that while the crime took place here, and local prosecutors amassed evidence against the accused, the trial took place in a Cuban court, with Cuban prosecutors presenting evidence gathered in Palm Beach.

This is apparently due to the fact that the defendant, a Cuban national, was arrested in Cuba at the request of the United States through Interpol, but the Cuban government would not turn him over because of his Cuban nationality.

At some point, Cuba offered and the United States agreed to “transfer the prosecution” to Cuba, as the Herald puts it (on this part of the story, no details have emerged). A conviction was obtained in late May, and the convict is serving 20 years in a Cuban jail.

There has never been a case such as this, where U.S. authorities provided evidence that allowed Cuban prosecutors to bring a case in Cuban court for a crime committed outside Cuban territory – and in so doing, confiding in the Cuban judicial process to render a fair verdict.

To make it explicit, the Justice Department told the Herald something you would never expect from a Republican Administration: “The defendant was provided the procedural and due process rights afforded to criminal defendants under Cuban law, to include the right to counsel and cross-examination, and to review the evidence against him.”

The U.S.-Cuba Memorandum of Understanding on law enforcement, signed just days before President Obama left office, expresses a mutual intention to collaborate in the prosecution of a list of specific crimes and of “other transnational or serious crimes under jurisdiction of the Participants” (see Section III.1).

It’s hard to imagine a new, full-blown U.S.-Cuba extradition agreement that would replace the 1904 treaty that has never been abrogated, but has been a dead letter for six decades. In this case, with its very particular circumstances, the cooperation arrangements now in place yielded a result.

Which leads me to wonder if the Administration views this as a special action for this specific case, or if there is a policy decision that could lead to similar actions in the future. If it’s the latter, and if Cuba is on board, it could lead to trials of Medicare scammers who have fled to Cuba.

The State Department’s July 10 statement made a brief reference to this case, and I wrote about it here.

Update:

The Palm Beach Sherriff’s office issued a statement saying that county prosecutors traveled to Cuba to work with Cuban prosecutors, and one of its detectives testified at the Havana trial. It is the first time that “a Cuban citizen was put on trial in Cuba for a murder committed in the United States,” the statement says. 

And in another Florida case, this one involving vehicular manslaughter, a Cuban witness was allowed to provide video testimony from Cuba, where he exculpated the defendant and inculpated himself (Herald).

 
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“New bilateral cooperation” in law enforcement

Well this is interesting, and good news: The United States and Cuba held a fourth set of talks in Washington on law enforcement, after which the State Department’s statement mentioned “new bilateral cooperation that resulted in the conviction of a Cuban national who murdered an American citizen and who had fled prosecution in the United States.” Cuba’s statement was less specific, referring to cooperation that has enabled the “prevention of crime and the prosecution of violators of the law.”

For some time there has been discussion in Havana of a person who fled to Cuba after being accused of committing a murder in Miami. After talks between the two governments, the story goes, it was decided that the person would be tried in Havana; he was tried with evidence provided by U.S. authorities, and was convicted in May. I have found no confirmation of these details, nor any court documents. But with the U.S. statement, it seems that the story is starting to come out.

There are several points of interest here.

Law enforcement cooperation has been going on for decades, mainly involving drugs and alien smuggling cases. The Obama Administration brought greater structure and regularity to these contacts, and the Trump Administration has continued this process and built on it, noting that “new bilateral cooperation” made the conviction possible.

It would be good to get legal records or some official account of the legal process in Cuba to see how U.S. evidence was employed in the prosecution, and how the defense functioned. Also, is it possible under Cuban law for a Cuban to be tried in Cuba for a crime committed abroad, or was it necessary to bring charges for related crimes committed in Cuban territory?

There are many obstacles to establishing functioning extradition agreements between the United States and Cuba. Among these are U.S. distrust of Cuba’s court system, and U.S. reluctance to assume a commitment to send persons to a place where they will not get a fair trial. The obstacles are not going away soon, so extradition agreements remain a distant prospect. But in this case, the U.S. side is clearly pleased at a conviction obtained in a Cuban court. Will this be a precedent, and could it lead to action against Medicaid scammers and others who have fled charges in the United States?

In related news, deportations to Cuba are up under Trump, according to New Times.

New rules coming for Cuba's entrepreneurs

The news starts about ten paragraphs into this Granma story on a Central Committee meeting on economic policy. New “legal norms” affecting Cuba’s more than 580,000 cuentapropistas have been signed and will soon be issued, and there will be some kind of “training” for them and 30,000 officials, presumably to promote tax and regulatory compliance.

Apart from that, monetary unification remains a high priority, there are plans to continue investing in the industries (construction materials, etc.) that enable improvement of housing stock, and work continues on constitutional reform to make Cuba’s constitution reflect “the principal economic, political, and social transformations” resulting from the last two party congresses. No mention of term limits or new laws governing the election process, comminications media, or non-government entities, all of which have been said to be under consideration.

Reuters story here.

Another Elian?

The elements are all there in this Herald report: the child is in the United States, the mother deceased, the father in Cuba and described in the press as the mother’s husband, he wants custody and a Miami relative has it temporarily. One difference is that the child, born in the United States, can become a U.S. citizen by birth and a Cuban citizen by parentage. Another difference may be that the father would rather live here than there; from the Herald story, it seems that a visa application was in the works.

The Elian case turned into a political battle, but what mattered in the end was the principle – which the U.S. government asserts all around the world when American parents are separated from their kids – that if a minor child has one fit parent, then parent and child should be united.

We’ll see how this one turns out.

Odds and ends

·      Cuba and the United States agreed on a framework for cooperation on law enforcement (terrorism, drugs, human trafficking, contraband, etc.), but did not release a text. Announcements here (U.S. and Cuba). Meanwhile, the Bergen Record editorializes that Trump should not reverse Obama’s policies but he should press hard for the return of fugitive Joann Chesimard.

·      A magnitude 4.5 quake shook southeastern Cuba,

·      Miami’s ABC affiliate WPLG opens a bureau in Cuba.

·      What it’s like to hijack a plane and live the rest of your life in Cuba.

·      AP on a fine effort by universities and libraries to preserve parish records that record births and other information about Cubans centuries ago, including the slave population. In Cuban parishes, you can see the old registries in separate books, one for blacks only.

Odds and ends

·         As the 15^th round of Colombia peace talks proceed in Havana, Juventud Rebelde gives ample coverage to the Colombian government’s complaint that the guerrillas are dragging their feet and trying to add extraneous items to the agreed agenda.  Cuba acts as “guarantor” in the talks.

·         Herald: Panamanian officials say that some of the aircraft engines on the North Korean freighter seized in Panama were “brand new.”  They also say that “friends overseas” tell them that Cuba and North Korea have an arms trade agreement of uncertain scope; that the North Korean crewmen in detention are happy campers (air conditioning, clothes, food, cigarettes, time for soccer every day); and that while the crew have spoken to investigators they have declined to sign statements.

·         An “updating” of Cuba’s criminal justice procedures took effect October 1 and was explained by officials on a Mesa Redonda program.  Relatively minor offenses that had been handled in provincial courts will now be heard in municipal courts.  For certain minor offenses prosecutors will have discretion to impose administrative penalties (fines) rather than go to court to seek a prison sentence, although a defendant can insist on a court trial if he wishes.  The impact seems to be a streamlining and a shift of caseload to lower courts and, depending on how prosecutors use their discretion, lesser penalties for minor criminal offenses.

·         Canadian professor Steven Kimber makes the case for the Cuban Five in the Washington Post.

·         AP on the clash between el exilio and more recent Cuban immigrants.

·         Who’s investing in Cuba?  A smart B-School student figures it out at the bar at the Hotel Nacional.

·         Granma on the art of base stealing through the years.

·         EFE: The family of Oswaldo Paya, now living in Florida, acquires Spanish citizenship.

·         AP: A ceremony in the Colon cemetery in Havana to commemorate the terrorist downing of the Cubana airliner in Barbados in 1976.

·         In the National Interest, a look at the past and the future of Cuba’s intelligence services, “punching above their weight.”  The authors link to this interesting U.S. assessment (pdf): “Cuban Subversive Activities in Latin America, 1959-1968.”

·         In an advice column for Congress, former New Mexico governor Bill Richardson owns up to his bumbling in Havana in 2011.

Housing: making the illegal legal

Cuba’s Supreme Court has ruled that illegal home purchases made before the law changed in 2011 can now be legalized. 

This article in Cubaencuentro, with links to the court decision and order, explains the decision and the case based on an interview with the plaintiff.  (The writer, Mirella Betancourt, happens to be my wife.)

It boils down to the following: Decree-Law 288, which legalized home sales in 2011, made no provision for past home sales even though it is common for new laws to contain transitional measures that apply new norms to past actions. 

One such past action, which resulted in the court case, is the 1998 purchase of a Havana apartment for $5,000 by Bertha Bouly Wilson, a woman from Guantanamo province.  Owner Ricardo Andux Barrueta vacated the home, and Bouly moved in.  In a legal maneuver typical of the time, they married, Bouly explained, with the intention of divorcing so that the property could pass to her in the divorce settlement.  But the divorce did not take place, and in time Andux tried to regain possession of the home and to have Bouly evicted.  Bouly turned to the courts to try to obtain full legal ownership of her home.

She and her attorneys fought a losing battle for six years.  After the new real estate law went into effect in 2011, Bouly argued in Havana’s top provincial court that the law should not penalize her for a transaction that was illegal in 1998 but would be legal  today.  She lost that case too, with the court deciding that since the new law did not address past real estate transactions, it had no basis to rule in her favor.

Only by continuing to litigate, “with hope for a miracle,” she says, did she fend off eviction.  Her last option, an appeal to the Supreme Court, gave her a complete victory.  Its February 28, 2013 decision declared the 1998 transaction to be valid today.  It ordered that she and Andux appear before a notario (a local Ministry of Justice official) to have her name inscribed on the property title and that of Andux removed.  It also ordered that in the event that Andux would not appear, the provincial court would appear in his stead to ensure that the transfer of title proceeds.

In its decision, the Supreme Court noted that Decree-Law 288 included no provision about pre-2011 home sales, and it repealed old statutes that made those sales illegal.  That, the court said, left only one legal norm in place, the new one, making home sales legal – past, present, and future.  Hence the Supreme Court declared that the lower court was “in error” on legal grounds in deciding against Bouly, and had failed to act with a “sense of justice that should be most important in a judicial decision when one puts in relief the defenselessness of the appellant [Bouly] in face of the antisocial conduct of the seller [Andux].”

The court then issued a circular to all courts, law firms, and government housing offices to order that the same standards and procedures applied to Bouly be applied to all.  It thus converts its decision into law.

The independence of Cuba’s judicial system is certainly debatable, and indeed the courts are rooted in the Cuban executive.  But regardless of what one thinks of Cuba’s legal system, this decision has impact.

Cuba’s government has already been urging homeowners to update and register their titles.  Now a large number of homeowners previously shut out will have the opportunity to do so.  To the extent that they do, Cuba’s property registry will become more accurate and up to date.  For persons in Bouly’s position, a clear and registered property title means security and protection – from a seller who took your $5,000 and then tries to take his house back, or from some other party, perhaps outside of Cuba, who might press a claim.  For the government, it broadens and consolidates what is one of its most popular reforms.

Odds and ends

• Cuban media continue covering the Snowden case without mentioning that he has requested asylum in Cuba.  These articles discuss his requests to Brazil and Russia, and this foreign ministry statement slams U.S. pressure on other countries.

• There were changes in the membership of the Communist Party’s Central Committee, including the departure of U.S. expert and former National Assembly President Ricardo Alarcon.  The changes represent a “natural process,” the Granma story says.  Raul Castro recalled an agreement made in the last party conference by which members of party committees “at all levels should submit their resignations from their posts when they consider that the reasons for their elections no longer obtain.”  Hence Alarcon and four others, all of whom had left high-level posts elsewhere, left the Central Committee.  Here’s the list of the Central Committee’s 112 members, not yet updated.  More from BBC.

• Radio Marti on the changes in the Cuban penal code that opens the door for reduced sentences in criminal cases.

• The Herald on the latest twist in the case of former Rep. David Rivera’s re-election campaign.

• Financial Times on Cuba’s real estate market.

• El Nuevo has an affectionate profile of the guys at Babalu, ten years into their enterprise.

• “There’s an awful lot to like about this kid,” Yankees manager Joe Girardi said after seeing Cuban phenom Yasiel Puig play with the Dodgers last month.  More from Bill Plashke in the Los Angeles Times.