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

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