CubaBrief: Two Cuban prisoners of conscience celebrate their second birthdays behind bars. Amnesty condemns new draconian penal code that came into force in Cuba on December 1st.

Source: CubaLex

Luis Robles turned 30 years old today, and celebrated his second birthday behind bars for holding up a sign silently in a public space that read ” “Freedom. No more repression. #free-Denis [Solís].” He was arrested and jailed on December 20, 2020, and on March 28, 2022 Luis was sentenced to five years in prison.

Luis Manuel Otero Alcántara turned 35 years old today while in prison, and like Luis Robles is observing his second birthday behind bars. He was arrested and jailed on July 11, 2021 when he announced that he was heading out to join the mass protests that broke out across the island. He was arrested before he could join the protests, and he was also sentenced to five years in prison on June 24, 2022.

This is a brutal system that is still conducting summary trials, issuing long sentences, and over a thousand Cubans have been jailed for peacefully protesting since July 2021. Worse yet, the penal code in Cuba on December 1, 2022 became still more draconian. Cuba’s new Penal Code, which was announced in February, approved in May, and came into force on December 1st. Amnesty International today reported on its severity calling it “a chilling prospect for 2023,” highlighting the expansion of the death penalty to 23 crimes, and punishing expression for even longer prison sentences.

“In a context where the judiciary continues to be neither independent nor impartial and allows criminal proceedings to be brought against those critical of the government as a mechanism to prevent, deter or punish them from expressing such views, this could result in human rights activists or critical actors being imprisoned for even longer periods of time.” 

Other international human rights organizations are condemning the new penal code.  Meanwhile Cuban artists continue to defy the Castro regime facing prison, or forced exile. Gareth Harris in two articles in The Art Newspaper published on November 28th and November 30th focused on Cuban artivists, and their response to the ongoing repression in Cuba.

Cuban artist and activist Tania Bruguera  during Art Basel read out the names of 958 prisoners of conscience, including many artists, detained in Cuba during the July 2021 protests in a performance piece “staged at El Espacio 23, the private museum in Allapattah founded by the collector Jorge Pérez. The Coro piece, lasting an hour, vocalised the “names of the political prisoners accompanied by a fragmented interpretation of the Cuban national anthem”, says a project statement. The list of prisoners was provided by the human rights group, Justicia 11J.”  She wants to bring attention to what is happening: “I want to remind people what is happening in Cuba right now. There is also a tradition in activism of reading the names of people who have died [or been persecuted].”  She offers a clear critique of those seeking to normalize relations with the Castro regime: “They should not support nor do business with the Cuban government while Cuban people are suffering.”

Hamlet Lavastida offers a hypothesis as to why repression has worsened, in an already extremely repressive system: “Castro was the law but now he’s gone, the people in power do not have legitimacy.” Therefore, they need more draconian laws and repression to hang on to power.

Amnesty International, December 2, 2022

Cuba: New criminal code is a chilling prospect for 2023 and beyond

Cuba’s new Penal Code, which was approved in May but came into force on 1 December, risks further entrenching long-standing limitations on freedom of expression and assembly and is a chilling prospect for independent journalists, activists, and anyone critical of the authorities, said Amnesty International today.

“Over many decades, the Cuban authorities have consistently used the criminal law — or the threat of it — to silence dissent. The new Criminal Code contains a suite of chilling provisions that give the authorities even greater powers to continue smothering freedom of expression and assembly in 2023 and beyond,” said Erika Guevara-Rosas, Americas director at Amnesty International.

Cuba’s new 141-page Penal Code replaces the previous one, which dates back to 1987, and contains a number of new and old provisions that are concerning for human rights. It takes effect at a time when many hundreds remain in prison for protesting in July 2021, and after waves of protests in October this year were also repressed.

Here are five alarming aspects of the new Penal Code:

  1. Many provisions of the criminal code that have been used to silence and imprison activists for decades remain

Following the crackdown on protests in July 2021, Amnesty International named six prisoners of conscience — just a few emblematic cases that represent only a tiny fraction of the total number of people who likely deserve the designation. Three of those prisoners of conscience remain imprisoned, while the others, according to the information available to Amnesty International, were forced into exile by the authorities.

All of Amnesty International’s prisoners of conscience, and many hundreds of others criminalized in the context of protests, were charged under several provisions of the Penal Code that have historically been used to silence dissent. These include “public disorder,” “resistance,” and “contempt.” For example, the artist Luis Manuel Otero Alcántara was convicted of “public disorder”, “contempt” and “insulting national symbols.” The leader of Cuba’s unofficial political opposition group, José Daniel Ferrer García, who has frequently been held with limited access to the outside world since his detention in July 2021, was charged with “public disorder.”

All these provisions remain in the new Criminal Code, with some changes to the wording, but with increased minimal penalties. For example, “contempt”, “public disorder”, and “resistance” now carry minimum penalties of six months in prison to a year and/or a fine, compared with a minimum of three months to a year in prison and/or a fine under the previous penal code. Similarly, “insulting national symbols”, which includes defiling or other acts that show contempt for the flag or national anthem, now includes a penalty of imprisonment for two to five years or a large fine or both, compared with a penalty of three months to a year or a fine under the previous criminal code.

In a context where the judiciary continues to be neither independent nor impartial and allows criminal proceedings to be brought against those critical of the government as a mechanism to prevent, deter or punish them from expressing such views, this could result in human rights activists or critical actors being imprisoned for even longer periods of time. 

Additionally, Amnesty International believes that public officials should tolerate more criticism than private individuals. The use of criminal defamation laws with the purpose or effect of inhibiting legitimate criticism of government or public officials violates the right to freedom of expression. Amnesty International also opposes laws prohibiting insult or disrespect of heads of state or public figures, the military or other public institutions or flags or symbols (such as lèse-majesté and desacato laws). Amnesty International opposes laws criminalizing defamation, whether of public figures or private individuals, which should be treated as a matter for civil litigation.

2. The new Penal Code penalizes anyone who “endangers the constitutional order and the normal functioning” of the government

Article 120.1 of the new law allows anyone who “endangers the constitutional order and normal functioning of the State and the Cuban government” to be punished with imprisoned from four to 10 years. 

According to international human rights law, the right to freedom of expression can only be restricted in very limited circumstances. Any restrictions must meet all elements of a strict three-part test: they must be provided by law, necessary and proportionate for the purpose of protecting national security, public order, or public health or morals, or the rights or reputations of others. Additionally, to prevent abusive impositions of restrictions, there must be an effective appeal process in place to an independent body, or judicial review. Vaguely worded provisions, such as “endangering the constitutional order” and “normal functioning of the State and the Cuban government” are incompatible with international standards and laws on the right to freedom of expression.

3. It criminalizes receipt of funding, further stifling independent journalists and activists 

Article 143 of the new criminal code stands to further stifle the ability of civil society organizations, activists, and independent journalists to operate in the country, by prohibiting any receipt or use of finances that are deemed to “fund activities against the Cuban state and its constitutional order.” Anyone found guilty of being in possession of funds deemed to be used in this way faces a punishment of four to 10 years in prison.

Under international human rights law, the criminalization of human rights defenders based on receiving foreign funding is prohibited. Such restrictions on foreign funding are contrary to the right of association as they constitute an impediment for human rights defenders to perform their duties, as funding is an essential tool for the existence and effective operation of any association.

This new provision is already creating a chilling effect on independent journalists, who according to the NGO Article 19, have been pressured to resign ahead of the new penal code coming into effect.

4. It severely limits freedom of expression online

For the first time, Cuba’s new penal code explicitly allows the authorities to severely limit freedom of expression on social media and creates a range of vaguely worded offences related to “telecommunications, information and communication technologies” which in a context where freedom of expression has historically been squashed by the authorities, risk being abused.

Additionally, under the new law (Article 391.1) anyone who knowingly shares “fake information” (hechos falsos) can face six months to two years in prison or a fine, or both, and is subject to higher penalties, among other things, if the information is shared on social media or in online or offline media. Similarly, anyone who intentionally “offends another person in their honor”, either in writing or drawing or through acts or gestures, can also face six months to a year in prison or a fine, or both. This offence is also considered aggravated if the information is shared on social media.

According to international human rights law, vague and overly broadly worded laws, for example, which prohibit spreading “fake information”, or which penalize a person for offending someone’s “honor”, do not meet the three-part test described above and are incompatible with the right to freedom of expression. 

5. The new penal code retains the death penalty for 23 different crimes

As most countries in the world move towards abolition of the death penalty, Cuba’s new penal code moves against that trend by retaining the death penalty for severe crimes. 

The death penalty is the ultimate cruel, inhuman and degrading punishment. Amnesty International opposes the death penalty in all cases without exception — regardless of who is accused, the nature or circumstances of the crime, guilt or innocence, or method of execution.

“As we approach the end of 2022, hundreds of Cubans remain in prison for peacefully expressing their beliefs, protest continues to be repressed, and we are seeing one of the biggest waves of forced migration out of Cuba in recent history, as people seek to build new lives with greater freedom overseas,” said Erika Guevara-Rosas. “We will be watching the authorities carefully in 2023 and calling on the international community to condemn in the strongest terms abuses of the criminal law to silence dissent.”

Artist Luis Manuel Otero Alcántara was convicted of “public disorder”, “contempt” and “insulting national symbols”. Amnesty International continues to campaign for Luis Manuel’s release and to defend the rights of many others who have been criminalized for being critical of the Cuban authorities.

Sign the petition

https://www.amnesty.org/en/latest/press-release/2022/12/cuba-el-nuevo-codigo-penal-presenta-un-panorama-aterrador-para-2023-y-anos-posteriores/

Associated Press, December 1, 2022

Human rights groups criticize Cuba’s new criminal code

By MEGAN JANETSKY

HAVANA (AP) — Cuba enacted a new penal code this week that activists and human rights organizations warned Friday could further limit free expression and snuff out protests at a time of deepening discontent on the island.

The code, a modified version of the country’s 1987 regulations approved by the Cuban government in May, will ripple to journalists, human rights activists, protesters, social media users and opposition figures.

The changes come amid deepening discontent in Cuba produced by compounding crises and as the government continues to dole out harsh sentences to participants — including minors — in the island’s historic 2021 protests.

Among some of the changes are increases in the minimum penalties and prison sentences on things like “public disorder,” “resistance” and “insulting national symbols.”

The new code also establishes criminal categories for digital offenses, saying that people disseminating online any information deemed to be false could face up to two years in prison.

It also prohibits the receipt and use of funds made to finance activities “against the Cuban state and its constitutional order,” which human rights groups say could be used against independent journalists and non-governmental groups. Conviction could bring four to 10 years in prison.

The government has described the new code as “modern” and “inclusive,” pointing to stiffening penalties on gender-based violence and racial discrimination. Following its approval, Rubén Remigio Ferro, Cuban Supreme Court president, said on state TV that the code is not meant to repress, but rather protect “the social peace and stability of our nation.”

But human rights watchdog groups, many of which are not permitted on the island, raised alarms about the new code Friday.

“This is clearly an effort to provide a legal avenue for repression and censorship and an effort by Cuban authorities to undercut the little civic space that exists in the island and impede the possibility that Cubans will take to the streets again,” said Juan Pappier, senior investigator for Human Rights Watch in Latin America.

Pappier, alongside an Amnesty International report, said the code is “plagued with overly broad” language that could be used by Cuban authorities to more easily punish dissent.

Cuba has faced significant international criticism for the treatment of protesters in anti-government demonstrations in July 2021.

A total of 790 participants of the protests face prosecution for sedition, violent attacks, public disorder, theft and other crimes, according to the latest figures released in January by Cuba’s attorney general’s office.

More than 500 are serving prison sentences, according to numbers from opposition organization Justice 11J, which advocates for those on trial or serving prison sentences in connection with the protests.


https://apnews.com/article/cuba-caribbean-race-and-ethnicity-racial-injustice-dfb688ddb5640b531673277473cffc61

The Art Newspaper, November 30, 2022

Tania Bruguera pays tribute to political prisoners in Miami performance

The artist and activist staged a performance at El Espacio 23 during Miami Art Week “to remind people what is happening in Cuba right now”

Gareth Harris

30 November 2022

Artist and activist Tania Bruguera performs her piece Coro at El Espacio 23 Gareth Harris

The Cuban artist and activist Tania Bruguera read out the names of 958 political prisoners, including numerous artists, detained in Cuba during a performance piece staged at El Espacio 23, the private museum in Allapattah founded by the collector Jorge Pérez. The Coro piece, lasting an hour, vocalised the “names of the political prisoners accompanied by a fragmented interpretation of the Cuban national anthem”, says a project statement. The list of prisoners was provided by the human rights group, Justicia 11J.

“It is important to do this action during Art Basel Miami Beach. I want to remind people what is happening in Cuba right now. There is also a tradition in activism of reading the names of people who have died [or been persecuted],” Bruguera says. Asked how US politicians should respond to the crisis in Cuba, she says: “They should not support nor do business with the Cuban government while Cuban people are suffering.”

Since the passage of the country’s repressive Decree 349, the Cuban state has gone to great lengths to silence critical voices, including that of the artist and activist Luis Manuel Otero Alcántara who was detained on 11 July 2021 when protests erupted across the country. As one of the founders of the San Isidro movement, he helped bring injustices by the Cuban government to the global stage; Alcántara remains in prison.

https://www.theartnewspaper.com/2022/11/30/tania-bruguera-performance-miami-espacio-23-political-prisoners

The Art Newspaper, November 28, 2022

Losing the battle: Cuba’s dissident artists find ways around censorship despite government crackdown

Since the passage of the country’s repressive Decree 349, the state has gone to great lengths to silence critical voices—but artists refuse to be silenced

Gareth Harris

28 November 2022

In Cuba, censorship has escalated because the political infrastructure of the country is collapsing incrementally, a thesis supported by the artist Hamlet Lavastida’s testimony that “Castro was the law but now he’s gone, the people in power do not have legitimacy”. In a country where the judiciary is not separate from any branch of government, artists are subject to harassment that appears unrestrained. (The Cuban embassy in London did not respond to queries about restrictions.)

The Cuban government has arguably become more totalitarian with Miguel Díaz-Canel at the helm in the positions of both First Secretary of the Communist Party and President of the State, a position he filled in April 2018. The new leader—not a Castro for the first time in 40 years—has employed the pretext of government legislation to clamp down on creative expression under a Communist regime, where Decree 349 requires artists to register for a government-issued licence. Under Decree 349—published in July 2018 and implemented the following December—all artists, including collectives, musicians and performers, are prohibited from operating in public or private spaces without prior approval by the Ministry of Culture. Amnesty International noted that the decree is likely to have a generally restrictive effect on artists in Cuba, preventing them from carrying out legitimate work for fear of reprisals. The human rights organisation notes that “the decree contains vague and overly broad restrictions on artistic expression”, paving the way for “its arbitrary application to further crackdown on dissent and critical voices”.

The Cuban government says it has not fully implemented Decree 349, but dissident artists have been persecuted in many ways since the law went into effect via hostile interrogations, fines, detentions and performance cancellations, says Coco Fusco, a Cuban American artist and writer. But another less publicised law has had an equally calamitous impact on the freedom of artists. Decree 370 curbs communications on social media, further censoring the dissemination of information on the island of Cuba, a law that has been further tightened in late 2021 by the introduction of Decree 35, which introduced stricter controls on the use of social media.

A recent Cuban cultural revolution led by artists and creatives, which has escalated since the death of Fidel Castro in 2016, has prompted the severest of clampdowns, but several developments and figures stand out in this ongoing censorship chronicle. The activist collective 27N was founded in November 2020 during a demonstration outside the Ministry of Culture in Havana, while artists such as Lavastida and Luis Manuel Otero Alcántara were at the forefront of protests that erupted across Cuba in July 2021 when people marched against hyperinflation and growing social inequality. Both men have experienced the impact of the government’s clampdown. Lavastida, a member of 27N, was arrested in June 2021 upon returning from an artist’s residency in Germany. In custody, he learned that an idea shared in a private chat—stamping Cuban currency with the logos of two activist groups—had prompted the authorities to charge him with “instigating to commit a crime”. He spent three months at Villa Marista, the state security headquarters, and was sent into exile in Poland in September 2021. He has said that he was interrogated about the motivation behind his art, his interest in politics and activism, and why he maintains relationships with individuals based in the US, such as Fusco. Meanwhile, in May 2021, Otero Alcántara, the founder of the San Isidro activist movement, was detained and hospitalised against his will by the Cuban security service eight days into a hunger strike after calling for free speech and artistic freedom on the island. Since 2018, he has been detained more than 50 times and at the time of writing remains in prison.

Lavastida has given the background for his own situation and how the government’s reactionary measures have escalated, providing a coda to decades of suppression since Castro took power in 1959. Artists have always been fearful of retribution under the rule of the Communist Party, he says, but 2018 was a turning point after the authorities announced the rollout of a national 3G network allowing Cubans to access the internet from anywhere. Lavastida sees the move as momentous, bringing an “analogue government in conflict with a digital society”.

Online circumvention

Crucially, “many voices that were silenced for decades could now speak freely to people abroad and internally”. Fusco astutely puts recent events in context, explaining how the raft of decrees enforced post-2018 “criminalise the activity of most people online who have any political consciousness whatsoever”. She stresses that artists were among the first Cubans in the 1990s to be allowed to sell their work directly in hard currency, permitting travel and more access to foreigners.

This recent access to the worldwide web has nonetheless enabled artists to circumvent government control, giving them a degree of freedom, albeit still in the shadow of the government which has failed to maintain hegemony over the circulation of information. “They are losing that battle. The artists and the intellectuals are succeeding in getting around them,” Fusco adds. This has resulted in an ironic subversion of autonomy as the government is desperate to accrue revenue from the hard currency that comes from internet usage, which has exploded since 2018, Fusco says. “They want to get the money, but they want to control the political content.” Yet those artists who incorporate political activism into their practices have been more at risk than ever in the wake of the recent decrees. Lavastida has been in the eye of the storm for a decade, developing work that deconstructs images and iconographies of the Cuban revolution. At the Untitled Art fair held in Miami Beach in late 2021, he finally realised his idea of stamping currency with messages of support for freedom of expression in Cuba, joining the performance via Zoom as Fusco and another Cuban artist, Marco A. Castillo, marked visitors’ bills.

• This is an excerpted passage from Censored Art Today

(2022), published by Lund Humphries Publishers and the Sotheby’s Institute of Art

• Listen to Gareth Harris speak more about his book on art censorship here.

https://www.theartnewspaper.com/2022/11/28/losing-the-battle-cubas-dissident-artists-find-ways-around-censorship-despite-government-crackdown