Saturday, December 8, 2012

Laritza Diversent: The Pending Emigration Law Should Make No Distinctions Because of Citizens' Political Views

Laritza Diversent: The Pending Emigration Law Should Make No
Distinctions Because of Citizens' Political Views #Cuba
Laritza Diversent, Translator: Unstated

Readers' interview from Diaro de Cuba

The attorney and independent blogger, Laritza Diversent, responds to
questions by readers of Diaro de Cuba regarding emigration reform.

Ricardo E. Trelles: In your professional life you have to deal with the
country's existing legal system in which laws are formulated and
established in an illegitimate way, without citizen participation, and
in which the appointment of judges as well as their legal decisions are
made arbitrarily. Don't you think that your knowledge could be useful in
helping to define and develop a political movement that could help
provide us with a government, legislative body and legal system that is
legitimate and respectable? Do you have hopes that the current legal
system will continue to become a little more flexible and tolerant, one
where there are more opportunities for respectful criticism that does
not threaten its hegemony?

Hello, Ricardo. Yes, that is precisely what I am doing — putting my
knowledge at the disposal of Cuban civil society, or whoever might have
need of it. And it is not only me. There are also other young attorneys
with whom I intend to work to identify the problems of the legal system,
which puts us in an indefensible position by making us look for ways to
oppose it, so that, when democracy does arrive, these problems will not
be repeated. Along with attorneys such as Yaremis Flores, Veizant Boloy
and Barbara Estrabao, we are taking the time to identify those problems
and to help dissidents as well as citizens who do not seem to have
political motivations.

In regards to your second question, I do not think the system is
becoming more flexible and tolerant, much less allowing for citizen
participation from its critics. The situation in Cuba today demands
change, and even then this is not enough. My hope is that Cubans will
stop engaging in self-censorship and will realize that they are the
masters of their destinies and their lives, that free education and
health care are not "victories of the revolution" but an obligation of
the state, that they are people with rights and those rights are there
to be exercised since they are the foundation of liberty. In my opinion,
self-censorship is a stronger force in today's Cuba than repression. In
other words it is clear that physical repression is used against those
who exercise their rights, but most people do not exercise their rights
out of fear of repression.

Ernesto Gutiérrez Tamargo: It is always good to have the perspective of
a colleague in Cuba. What do you consider to be the positive and
negative aspects of Legal Decree 302/2012? Considering that it regulates
some basic human rights, don't you think it would have been more fitting
and consistent, legally speaking, if it had been approved as a normal
law by the National Assembly of People Power (ANPP) rather than being
issued as a legal decree by the Council of State?

In regards to your first question about what I consider to be positive
and negative in Legal Decree 302/2022, in my opinion the new regulations
are positive in that they allow Cubans living abroad to regain residency
status in Cuba. Before this law the only possibility of obtaining
permission to repatriate (a permanent return to Cuba) was if it was for
"humanitarian reasons." Permission was granted to those were were
terminally or gravely ill, women over sixty, men over sixty-five and
children under sixteen, and only if they could demonstrate that they had
family members in Cuba capable of supporting them financially.

On the negative side it does not solve the problem of dual citizenship,
which the constitution does not allow. The government does not prohibit
its nationals from changing citizenship, but neither does it allow them
to renounce their Cuban one. In practice it ignores the fact that a
Cuban living overseas might be a citizen of the other country.

With respect to the suitability of approving a law in the ANPP instead
of doing so in a legal decree by the Council of State, hopes for
emigration reform certainly grew each time a session of the National
Assembly was announced. However, it was the offices presided over by the
Head of State and Head of Government, the Council of State and Council
of Ministers who unexpectedly put the reforms into effect by decree.

Good judicial practice dictates that normally a law should be modified
or overturned by the body that created it. This is one of the principal
and logical outcomes of the principal of regulatory hierarchy. In other
words it is not appropriate for a lower body to modify a legal statute
established by a higher one. But in Cuba we are the exception to the rule.

Here it is quite normal for the Council of State to modify a law created
by parliament. We saw this, for example, in the new regulations that
allowed for the sale of private homes in which the Council of State
modified the General Housing Law, a statute created by the National
Assembly. The same thing happened with the new modifications, although
it was not the Cuban parliament that issued Law 1312 on September
20,1978. Instead it was approved by the President of the Republic, a
position that does not exist within the Cuban legal structure. It is the
Council of State that modifies or overturns statutes approved by
parliament based on the premise that it is a branch of the National
Assembly, which it represents when the Assembly is not in session.

With regards to the hasty approval in a plenary session of the National
Assembly in December, the strategic and intelligent decision was
conveniently put into effect before Cubans could exercise their right to
vote in elections. One of the promises made by Raul Castro when he took
office in 2008 was to eliminate "excessive and unnecessary"
restrictions. It was also to his advantage to modify his emigration
policy before the Universal Periodic Review (UPR) by the UN Council on
Human Rights, scheduled to take place between April 22 and May 3, 2013.

One of the recommendations made by the council in the previous UPR in
2009, which has still not been accepted, was to eliminate restrictions
on freedom of movement of its citizens. On this occasion the government
used a similar strategy when, before submitting to the review, it signed
the conventions on human rights on February 28, 2008, which it still has
not ratified, even though at the time the signing led to recognition and
congratulations from the international community.

Saavedra: I have two questions for you. First, I have been working
outside Cuba for a year and a half. To come here, I had to apply for a
release (a letter of non-objection) in February of 2011 at the
university where I used to work as a professor. I retain Cuban residency
and have travelled twice during this time. I am thinking of going in
December of this year and returning on January 10. Do I run the risk
that they will retain my passport based on fact that I worked at the
university more than a year ago and am a university graduate? Or could
they ask me for a new letter of release that the university rector could
delay giving me for up to five years?

In response to your first question, they are required to update your
passport and you would not be running a risk of having to apply for a
new letter of release. You have already been released. The guidelines
dealing with professionals who require authorization to travel overseas
for personal reasons pertain to those who are currently employed on the
island, whose names and permanent identity information is in an
automated system organized and controlled by the Ministry of Labor and
Social Security according to the new regulations (articles 5 and 6 of
the decree). However, I recall that there are various articles that
could apply here and that the final decision is subject to the
discretion of the Minister of the Interior.

Saavedra: My second question pertains to my wife, who is in Cuba. She is
also a university graduate and has a job as a specialist for ETECSA
(Telecommunications Company of Cuba). I would like to take her with me
early next year, in March or April. Obviously, they could delay giving
her authorization to travel for up to five years. If we begin the
process of applying for the non-objection letter before January 14 (when
the new law goes into effect), can they keep her there for five years
based on the new law or some other existing law, or would they release
her from her job reasonably quickly? Our intention is to work outside of
Cuba without losing our residency status there, or to travel at least
every two years. Thank you for your answer, and I apologize for the
length of my questions.

Your wife does run the risk that they could keep her passport for five
years if she is still working. The automated system contains the names
and permanent personal information of professionals who require
authorization to travel overseas for personal reasons and must be ready
in two months counting from October 16 of last year, the date of
publication of the new regulations.

Bryan: Is there some legal mechanism for Cuban youths who have dual
nationality to be excused from active military service?

Unfortunately, there is no legal ruling that exempts a young Cuban from
fulfilling the requirement of military service because of dual
nationality or citizenship. In fact this is one of the quirks that
prevents Cubans from obtaining a passport and, therefore, from leaving
Cuba. The government does not recognize that any of its citizens has any
citizenship other than the Cuban one, even if he or she holds
citizenship from one or more other countries. In other words, you can
have several nationalities, legally speaking however, within Cuba you
are a Cuban citizen and there is no formula or procedure by which you
can renounce this citizenship, even if it infringes on constitutional
law. Legally, even the National Assembly has not determined who has the
authority to decree loss of citizenship. It is one of the factors used
to control the flow of emigration.

Lila: I have been in Spain for ten months. I have a residency permit for
five years. I am not thinking of going back to Cuba because I would lose
my job. Would I have to get an extension or is there no need under the
new law? How much would I have to pay for my stay here?

Yes, you have to get an extension for each month you stay overseas after
the time period for which you received permission, if it is before
January 14, 2013. After that date a fee is charged for each month after
the first 24 months you are a permanent resident outside the country,
according to rulings from the Minister of Foreign Affairs. The name of
the consular contribution will change from "Extension for Overseas Stay"
to "Extension of Permanent Overseas Residency." They will be priced the
same. In your case, since Spain is a member of the euro zone, that would
be 40 euros if you pay it through the Cuban consulate. It you pay
electronically, it is 25 euros more. You could even ask them to give you
multiple extensions in the same application for the number of months
authorized.

Orosmer Rodríguez: In the case of Yoani Sánchez what would happen if
next February she were to decide to visit New York or Miami? Could she
be detained even if there are no pending legal charges against her?

Under new regulations Yoani Sánchez should get a new passport or have it
renewed, if she already has one. As long as she is not violating any
laws in Cuba's current Penal Code, no one can detain her. And if they
did, we would be dealing with an arbitrary detention.

It is another matter if they do not allow her to leave the country. That
would constitute a violation of freedom of movement, which is a
recognized right under the Universal Declaration of Human Rights as well
as under the International Convention for Civil and Political Rights
which the state, by signing, has made clear its intention to respect.

However, under the new emigration regulations the government can prevent
Yoani Sánchez from leaving the country by denying her the possibility of
obtaining a valid passport or by officially declaring that she may not
leave the country for reasons of national or military security, or if
the Minister of the Interior so determines.

International human rights institutions are concerned about the practice
by some states of hindering their own nationals from leaving their
country. One of the tactics that they mention is the refusal to issue a
passport under the pretext that the applicant would harm the country's
reputation.

Tenores Jomenor: I would like to know what you consider to be the main
points of "the pending emigration law," assuming it is inadequate.

The pending emigration law should not be called an emigration law since
the regulation of the right to citizenship would be outside its scope.
This is closely tied to freedom of movement, specifically to the right
of each individual to enter his or her own country, which recognizes the
special connection that one has to the other.

The pending emigration law should regulate and protect the right to move
freely and to choose one's residency within the nation's boundaries.
Nevertheless, Havana has special regulations that violate freedom of
movement and freedom to freely choose one's residency.

The restrictions that the anticipated emigration law contain should be
specific and provide for legal recourse to limit the ability of Minister
of the Interior to limit entry or exit from the country.

The restrictions contained in the pending emigration law should be
compatible with all other universally recognized rights and fundamental
principles of equality and non-discrimination. It should make no
distinctions because of a citizen's political views. Nor should it
invalidate any right or compromise its essence. In other words it should
not be the general rule and the exercise of the right the exception.

Mario Martínez: I live in Cuba, but have worked for several years in the
Cayman Islands. Until now I have had to return to the island every eight
or nine months. I would like to ask you if in the future, before going
to Cuba, I will still have to pay $40 per month extension with a bank
draft to the Cuban embassy in Jamaica as well as the $25 for not doing
it in person.

Your question is very similar to Lila's. After January 14, 2013, based
on the new regulations, specifically those from the Ministry of Foreign
Affairs, you should continue to pay the same currently established rates
for extending your stay overseas for more than 24 months, which is the
time limit for Cubans living overseas who have permanent residence on
the island and who travel on personal business.

Phillip: What does the constitution say about the right of citizens to
request a passport? In other countries it is a right that no one is
denied except in certain cases in which it can be confiscated from the
passport holder to prevent him from leaving the country when it being
shown that he has been involved in a serious crime. Otherwise, by law it
cannot be denied to anyone.

If the Cuban constitution ignores freedom of movement — widely
recognized as one of the principal judicial instruments of human rights
— then it pays even less attention to the right to obtain a passport.
The new emigration legislation certainly eliminates the entry and exit
visa, but it establishes a new prohibition, which in my opinion is even
worse. It prevents someone from obtaining a necessary travel document
not only for having committed a crime, but for reasons political or
otherwise. The right to leave the country also includes the right to
obtain the necessary travel documents. The refusal of the government to
issue a passport (or to renew an existing one) to a Cuban living or not
living on the island is to deny his legitimate right to enter or leave
the country.

Miguel Cervantes: Doesn't the emigration reform law contain something
about persons deported from the United States that Cuba refuses to receive?

After January 14, 2013 Cuban emigrants will be able to reclaim their
residency status within the nation's boundaries — an option that did not
exist prior to the new regulations. Although the new emigration statute
does not expressly mention people deported from the United States, their
status as emigrants allows them them file an application.

One of the advantages of the new emigration statute is that one does not
have to physically reside in the country to regain residency status on
the island. People will be allowed to exercise rights denied them until
now, such as their rights to vote, work, to education and to acquire
property.

The request can be filed through overseas consulates or through the
Processing Office of the Ministry of the Interior to the Department of
Immigration, which subsequently approves or denies residency requests
within three months.

The regulation also requires an applicant to disclose the means used to
emigrate and does not provide for an appeals process in the event a
request is denied. This means that recognition of one's right is subject
to the discretion of the Minister of the Interior. This also means that
emigration law itself establishes the conditions under which someone —
either a national or a foreigner — can be denied entry into the country.

Ramón: I left for Argentina in 1998 after obtaining a letter of
invitation and have not been back since. I was denied entry into the
country because I am a doctor. On numerous occasions over the last 15
years I filed appeals to the Cuban authorities, explaining that I was
authorized to leave, that I have my release card, and that I did not
leave during an official mission but rather on a visit to Argentina.
However, I have never received a reply. With this new law can I file an
appeal to return since I am an emigrant who left for personal reasons?
My father is still in Cuba. My mother died a month ago and I was not
able to even attend her funeral. I also have a sister and niece there.
They told me at the Cuban embassy in Argentina that everything remains
the same for people like me.

Unfortunately, the government's policy with respect to doctors, artists
and athletes is very inflexible and is not written into law. Although
changes have been made to emigration laws, certain practices remain in
place, such as the discretionary power of the Minister of the Interior
to decide which Cubans may enter or leave the country. You could read
through any number of legal statutes, and nowhere will you find mention
of any process by which a citizen can file an appeal in the event he or
she is denied the right to enter or leave the country.

The Civil, Administrative and Labor Procedural Law provides an avenue
for appealing administrative decisions by the Central State
Administrative Boards (OACE) and its domestic branches which violate
legally established rights.

However, denials by officials from the Ministry of the Interior
(MININT), a OACE, with respect to entry and exit applications cannot be
brought before a court since they emanate from the exercise of
discretionary legal authority. The law itself prevents judicial bodies
from analyzing the decisions arising from this authority. This is
precisely one of the concerns of international human rights organizations.

Supposedly, the laws which authorize the imposition of restrictions must
not confer discretionary powers without constraints on officials who
exercise them. There is only one conclusion that we can draw from this:
The discretionary freedom that the government grants to its Minister of
the Interior places citizens in a defenseless position when faced with
administrative actions which are detrimental to their legitimate rights.
Cubans are being denied "an effective recourse before competent national
courts charged with protecting them against actions which violate their
fundamental rights as recognized by the constitution or by law" by the
preventing them from appealing decisions of MININT officials before
courts of justice. Every Cuban "has the right, under conditions of full
equality, to be publicly and justly heard by an independent and
impartial court to determine their rights…"

Ramón, you should not allow them to continue punishing you for having
made the decision to exercise your rights. If the Cuban government does
not respond to you, contact the UN High Commission's special rapporteur
on the independence of judges and attorneys — a recommendation that I
strongly make to all Cubans who have been denied the right to enter or
leave their own country by the Ministry of the Interior.

Many thanks to the readers of Diario de Cuba for their questions.

November 27 2012

http://translatingcuba.com/laritza-diversent-the-pending-emigration-law-should-make-no-distinctions-because-of-citizens-political-views-cuba/

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