By Julio Antonio Fernández Estrada
The first thing that must be said is that the Republic of Cuba is based on the dignity of its citizens, according to Article 1 of the Constitution, so from the beginning of the great Cuban text no distinction is made between people who are more worthy than others, because we are all citizens.
We must also say that Cuba bases its international relations on the principle of defense and protection of human rights and repudiates any manifestation of racism or discrimination, all of this according to Article 16 of the Constitution, so it is impossible for the interior of the country to respect other principles.
Title V of the Constitution, entitled Rights, Duties and Guarantees, underscores in Article 40 that human dignity is the supreme value that underpins the recognition and exercise of the rights and duties enshrined in this document and in other laws.
It is impossible for human dignity to support an argument of discrimination or social exclusion or of a group of people with claims that do not contradict any other human right.
The Constitution of 2019 is the first in the history of Cuba to enshrine human rights. This is a transcendental fact of progress among us and the element of greatest progress in this constitution in comparison with the previous one.
Article 41 of this new law of laws recognizes the inalienable, imprescriptible, indivisible, universal, and interdependent exercise of human rights, in addition to their progressive nature and respect for equality and nondiscrimination.
The human rights that are now protected in Cuba, or at least declared in the Constitution, are almost the same as those enshrined in the Universal Declaration of Human Rights, except for some political rights that were not included in the most important Cuban legal document.
But how can they be exercised?
The exercise of human rights depends very much on the regime of guarantees that is regulated for them, political, institutional, social, legal, and procedural mechanisms that allow the defense of violated rights and the protection of persons and groups in danger.
Most of the guarantees of rights in Cuba continue to be social, that is, the socio-economic system has created guarantees since 1959 to ensure that economic, social and cultural rights are really protected, especially access to these rights, such as education, health, culture, sport, and work.
This Constitution of 2019 has greatly improved its system of legal guarantees. There is now a chapter in the Magna Carta, Chapter VI, which contains these guarantees and states in Article 92 that individuals may have access to judicial bodies to obtain effective protection of their rights.
It also recognizes the right of individuals to resolve disputes using alternative methods, which we assume to be conflict mediation.
For the first time, the constitution systematizes the elements of due process and includes them in Article 94.
The constitution also introduces the procedure of Habeas Corpus to guarantee the right of those who are illegally deprived of their liberty and enshrines a kind of Habeas Data, or guarantee of access by individuals to personal data in registers, files, or other databases. These last two guarantees are set forth in Articles 96 and 97 of the Constitution.
Also considered a guarantee is that included in Article 98, which regulates that any person who suffers damage or harm caused unduly by directors, officers, and employees of the State in the course of the exercise of their duties has the right to claim and obtain reparation or compensation in the manner established by law.
Finally, the most important human rights guarantee is contained in Article 99, which provides for claims before the courts for the restitution of rights violated by individuals or state officials.
This is the first time since 1976 that there has been a procedure for the defense of human rights in Cuba, a kind of amparo, with the principles of preference for this process, of its expeditious and concentrated nature.
The only cloud over this guarantee is the announcement in Article 99 itself that the law will establish the rights protected in this way, which means that they will not be all human rights.
In the legislative schedule provided for by the same Constitution of 2019, the twelfth Transitory Provision regulates the approval of a law governing the guarantee appearing in Article 99, within a period of 18 months counted from April 10 of last year, that is, before October 10, 2020.
Finally, Article 100 of the Constitution enshrines the principle of non-retroactivity that governs the entire Cuban legal system, that is, all the country’s legal norms. The only exception to this principle is the possible retroactive application of criminal law when it is favorable to the criminal defendant, and of the rest of the legal norms when the retroactive application is of social interest or public utility.
The non-retroactivity of the legal provisions is very important as a guarantee because it allows the population, all of us, to be sure and certain of which law is in force, because this allows us to know that only the rule that exists before the legal relationship in which we participate will be applied, and it prohibits the new law from affecting past legal relationships.
It can be summarized that the only way to know which are the rules of the legal game of a country, is that the law is written, public, and that governs this principle of non-retroactivity of laws.
It remains to be remembered that in Cuba the Office of the Attorney General of the Republic is the body empowered to protect citizens’ rights by serving the population at the municipal, provincial and general levels.