Luis Manuel Otero Alcántara was arrested on the same day that LGBTI+ activists had called for a kiss-in in front of Cuban television to protest the censorship of a homosexual kiss in a film. Luis, who supports all causes he believes in, had announced he would attend.
This Sunday, when the police saw him leaving his house, they arrested him and forced him into the patrol car, as they have done 27 times since 2017. His girlfriend, curator Claudia Genliu, was beaten in front of him to take away the phone she used to sign the arrest warrant. Four days later, the artist remains imprisoned, now transferred to Valle Grande prison. There he will await a summary trial. What Luis Manuel has done is wear the national flag “like a second skin” while walking through Havana, support all vulnerable groups or those attacked for dissenting, and wear a helmet in protest against the deaths of three girls buried by a balcony collapse. Luis Manuel's crime has been being an independent artist, even though he is now being tried for desecrating national symbols and damaging public property.
Over the past 30 months, Luis Manuel Otero Alcántara has been the victim of 32 incidents of harassment, several involving the use of force and violence, most of which included incommunicado detention and brief periods of disappearance. Authorities generally refuse to disclose his whereabouts. In 2019 alone, authorities arrested him 15 times, and four more times so far in 2020. None of these detentions have been subject to judicial oversight. At least six habeas corpus petitions have been filed on his behalf, all of which have been ignored.
Cubalex lawyer Laritza Diversent answers several questions that have been sent to her about the current criminal proceedings against Luis Manuel.
1-Besides “outrage against national symbols” and “damage to property”, is Luis accused of any other charges?
As far as I can tell, no. They were also charging him with aggravated contempt, but they dropped it, according to the MSI, which was confirmed by the lawyer. It's not property damage, it's vandalism.
2- What did Luis's "outrage against national symbols" consist of? (Note: the answer is not obvious.)
Outrage against the Symbols of the Nation
Article 203 of the Penal Code: “Whoever insults or with other acts shows contempt for the national flag, anthem or coat of arms, incurs a penalty of deprivation of liberty of three months to one year or a fine of one hundred to three hundred units.”.
It is the court that decides whether Luisma's actions desecrate those symbols; we know that there are no independent courts in Cuba. In any case, "desecrate or show contempt through other acts" implies a subjective assessment by the offended party, in this case the state, or rather, those who govern it. I refer you to the Report of the Special Rapporteur on cultural rights, Farida Shaheed, which, among other issues, addresses the use of the flag in art.
3- What do they understand as “mistreatment”? And what “property” are they referring to?
It's not mistreatment, it's damage. The Penal Code, in the first section of Article 339, defines damage as the act of destroying, deteriorating, or rendering unusable property belonging to another. Section 5 of this article adds that if the damage caused to objects, whatever their value, is done to impede the free exercise of authority, the penalty is imprisonment for two to five years.
According to the information we have been able to gather about the events that transpired during Luis Manuel's arrest, Claudia Genlui was filming the arrest at a safe distance. A State Security officer, who regularly monitors and represses them, asked for her phone, and when she refused to hand it over, a police officer used excessive force and violence to take it from her.[1].From inside the patrol car, Otero Alcántara watched helplessly as the scene unfolded and showed distress at the police violence perpetrated against his partner.
We assume (this won't be known until the lawyer has access to the preliminary investigation file containing the authorities' complaint) that he may have caused alleged damage to the state-owned police vehicle while fidgeting inside. However, Claudia saw him for five minutes yesterday, and he told her he hadn't damaged the patrol car at all. He was handcuffed, and a police officer was with him, applying a chokehold while tightly gripping his wrists, causing chafing (marks from the handcuffs).
4. Does the penal code provide for a summary trial for any of these charges? In other words, is it legal to hold such a trial given the charges against him?
The National Directorate of the National Revolutionary Police (PNR) reported that he is accused of property damage and will be subject to a "summary summary trial." This statement is contradictory. The criminal procedure system includes three distinct types of proceedings, among them the summary and abbreviated trial. It is impossible for two different proceedings to take place in the same trial (public hearing or oral hearing).
The summary trial is a procedure for judging crimes punishable by up to one year of imprisonment. The abbreviated trial requires that the defendant confess or have been caught in the act (flagrant offense) committing a crime punishable by one to eight years of imprisonment, as is the case with the crime of property damage. The Criminal Procedure Law defines a flagrant offense as one in which the perpetrator is apprehended while committing the crime. Based on our interpretation of the facts we have gathered (Cubalex), Luisma was in the custody of the authorities when he allegedly committed the property damage, and this would be the presumed reason why the authorities intend to apply this type of procedure.
However, there are several violations of the law in this case, including a lack of judicial oversight of his detention, a lack of due process guarantees, and the overreach or abuse of power by law enforcement and investigative bodies, as well as the failure of state agents to enforce the law, allowing them to make and execute discretionary decisions without any obstacles.
The first violation of the law in this case was his registration as a detainee. Luisma was detained on March 1st at approximately 2:30 p.m. According to information provided by the authorities themselves, the detention was registered on March 2nd at a police station in the 10 de Octubre municipality, the date on which he was transferred to the alternative detention center known as El Vivac, in the Boyeros municipality.
Article 244 of the Criminal Procedure Law states that “[w]hen any person is detained, a record shall be drawn up immediately stating the time, date, and reason for the detention, as well as any other relevant information.” However, this rule violates international standards regarding due process guarantees, as it does not require authorities to inform detainees of the reasons for their arrest or detention.
What are those standards?
According to the International Covenant on Civil and Political Rights, “[e]veryone arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be notified promptly of the charges against him.”.
Paragraph 10 of the Set of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that “[a]ny person arrested shall be informed at the time of his or her arrest of the reason for his or her arrest and promptly notified of the charges against him or her.”.
How were they violated in the LuisMa case?
According to Claudia Genluis, a direct witness to Otero Alcántara's arrest, they were leaving their home when he was violently detained, handcuffed, and forced into a police car. They were not informed of the reason for the arrest. They never do, but it was understood. Earlier that morning, Otero Alcántara had denounced on his social media that State Security and police officers had set up an operation to prevent him from attending the public kiss-in he had called for that same day at 1:30 pm in front of the Cuban Institute of Radio and Television (ICRT) to protest the censorship of a gay kiss in the film "Love, Simon," broadcast on Cuban television. This is not a legitimate reason. Procedural law authorizes anyone to detain someone attempting to commit a crime, at the moment of committing it, or a criminal caught in the act. Luis Manuel was neither attempting nor carrying out any action classified as a crime under criminal law.
The ICCPR establishes that no one shall be deprived of their liberty except on grounds prescribed by law; therefore, Luis Manuel's detention is entirely arbitrary. I would also like to point out that the procedural law also violates international standards in this regard. It authorizes any person to make an arrest, whereas paragraph 2 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that “[a]rrest, detention or imprisonment shall be effected only in strict compliance with the law and by competent officials or persons authorized for that purpose.”.
Ask Luis Manuel: Were you informed of the reasons for your arrest at the time of your detention? Were you informed that you would be processed through an expedited procedure? If so, who informed you—a prosecutor, a police officer, or a state security agent?
The second violation of the procedural law lies in the fact that it was the police who notified the decision to apply an abbreviated procedure to the case when legally it is established that it is the prosecutor who informs the accused that the abbreviated procedure will be applied and not the police authorities as happened in the case in question.
Following the guidelines established in criminal procedure law, after arresting a person, the police have 24 hours to release them without legal consequences or impose one of the non-custodial precautionary measures. If they decide to keep them provisionally detained, they must report the detainee and the case file to the investigating judge.
After receiving the report submitted by the police or becoming directly aware of the incident (they may make or order an arrest), the investigating officer has 72 hours to either release the suspect without legal consequences or revoke or modify the non-custodial precautionary measures ordered by the police. If the officer decides to keep the suspect provisionally detained, they must propose to the Prosecutor the imposition of pretrial detention.
After receiving the proceedings sent to him by the Criminal Investigator regarding the imposition of the precautionary measure of provisional imprisonment, the Prosecutor has a term of 72 hours to order the release of the accused or by reasoned order decreeing the provisional deprivation as a precautionary measure of security of the accused for the trial or revoke or modify the non-custodial precautionary measures of security that he ordered.
Between the time of the arrest and the time the authorities reported that they would apply the abbreviated procedure in the case, the first 24 hours had not yet passed, and although at that time the case was in the hands of an instructor, this is not an official authorized to make such a decision.
Finally, according to the information we have received from the lawyer appointed by Luis Manuel to members of the MSI, he will face two trials (public hearings) on the same day, one summary trial for the crime of insulting national symbols and another abbreviated trial for the alleged crime of damage.
5- Are there any precedents for summary trials in civil matters? If so, what are those precedents (to whom, when, under what accusations, etc.)?
He is not being prosecuted in a civil case, but in a criminal one. Civil proceedings, unlike criminal ones, do not carry prison sentences, at least not in the Cuban legal context. There are precedents, however. This was the procedure used to try the lawyer and journalist Roberto de Jesús Quiñones, who was tried in a summary proceeding on August 7, 2019, and sentenced by the Guantánamo Municipal Court to one year of imprisonment, which was commuted to correctional labor with confinement, for the crime of Resistance and Disobedience.
There are parallels between the two cases. In the case in question, the events occurred on April 22, 2019, the date on which Quiñones Haces was arbitrarily detained and assaulted by state agents. He was released on April 27, 2019. It wasn't until August 5 that Quiñones Haces was informed that summary proceedings had been initiated against him, when he was given a summons for the oral hearing two days later.
Luis Manuel was violently detained on September 12 by at least five state agents—three uniformed officers of the National Revolutionary Police (PNR) and two plainclothes officers—at the intersection of San Isidro and Compostela streets at approximately 11:15 p.m. He was with a group of friends at a visual arts exhibition at the Gorría Studio. He was released on September 16, 2019, after being given a summons to appear the following day at the police station located at the corner of Picota and San Isidro streets.
On September 18, in its response declaring the habeas corpus appeal filed in his favor inadmissible, the provincial court alleged that he had been detained under complaint 58608/2019, charged on September 16, 4 days after his arrest, by the Criminal Investigations and Operations Division (DITCO-1) and subjected to the precautionary measure of house arrest.
Although the response reveals several violations of due process guarantees, none of them were noted by the court. For example, the fact that he was formally charged four days after his arrest, or that he failed to challenge the obligations imposed by the application of a pretrial detention order—something that also occurred in the case of Roberto de Jesús, which I will discuss later. It is evident that judges are unfamiliar with due process rights due to the lack of oversight of arbitrary detentions within the system.
In its response to the communication sent by several mandates of the United Nations Special Procedures in the case of Roberto de Jesús Quiñones Haces, the State alleged that he had been released on April 27, 2019, under the precautionary measure of “obligation to appear periodically before the designated authority,” as provided for in Article 255.4 of the Criminal Procedure Code (information that is entirely inaccurate). It added that the obligations imposed by this precautionary measure, “by their nature, limit movement to his area of residence, as he is compelled to appear frequently at the Police Station,” since the journalist was prevented from leaving his province of residence. In our rebuttal to the government's response, we argued that this provision did not restrict mobility. The last paragraph of Article 255 only requires defendants to notify the Investigating Judge or the Court, as applicable, of any changes of address.
In the case of Luis Manuel, when he appeared at the summons, two officers from the Ministry of the Interior informed him about the charges he was accused of (improper use of national symbols and "aggravated contempt" for issuing insults towards the country's leaders), and prohibited him from leaving his house after midnight, consuming alcoholic beverages, organizing events at his house, and attending public places where there were crowds of people.
These measures are not provided for in procedural law, the only law that can be applied by law enforcement and investigative bodies. According to Article 256 of the Criminal Procedure Law, house arrest consists of the obligation of the accused not to leave their home without the authorization of the Investigating Judge or the Court, depending on the stage of the proceedings, except to attend to their workplace or place of study during regular hours, or to attend to their health.
Rationality dictates that this measure is entirely arbitrary in the Cuban context, even though it is enshrined in law. Imagine the situation of a person accused and placed under house arrest who has to appear before the investigating officer or the court to request permission to leave their home every time they need to obtain basic necessities that are so scarce these days.
One of the arguments authorities are using to keep Luis Manuel in pretrial detention is his violation of the obligations imposed by the house arrest order issued on September 16, 2019. The interesting thing about this case is that between that date and March 1, he was arrested at least 10 times, and only now did they consider that he had violated those obligations. Why are they only now deciding to use this argument?
Another detail to consider is the arbitrary nature of the arrests made by Luis Manuel. In none of them was he informed of the reason for his arrest, and even when these arrests occurred, he was neither attempting nor carrying out any actions classified as criminal under penal law.
The Penal Code includes a sanction prohibiting attendance at public places where there are crowds of people. This sanction is applied when there are well-founded reasons to presume that the sanctioned individual's presence in a particular place could incite them to commit further offenses. However, this sanction can only be imposed by a court (never an investigative body) through a sentence (after the defendant's guilt has been determined in a public hearing and with due process guarantees).
According to criminal procedure legislation, in this type of procedure when there are no detainees as is the case at hand, the police must transfer the proceedings to the prosecutor's office within a period, which cannot exceed 20 working days (Article 362 of the LPP).
Returning to the similarities between the cases of Roberto de Jesús and Luis Manuel, both were prosecuted under a summary procedure. One of the characteristics of this process is the speed of the trial, due to the shortening of legal deadlines, a feature that constitutes a violation of due process guarantees. The accused does not have the time or resources necessary to prepare their defense.
According to criminal procedure legislation, in this type of procedure when there are no detainees as is the case at hand, the police must transfer the proceedings to the prosecutor's office within a period, which cannot exceed 20 working days (Article 362 of the LPP).
The Prosecutor, upon receiving the proceedings, may transfer the proceedings to the competent Court within 72 hours (3 days) following its receipt (Section 4 of 363 of the LPP). The judicial body, once the investigations are complete, will proceed to set the trial for a date within 10 working days following the receipt of the proceedings (Article 360 of the LPP), ordering the summons of the persons who appear as accused, in which it will warn them that they must appear with the evidence they intend to use, and may do so assisted by the Defender of their choice (Article 371 of the LPP).
In other words, this procedure is scheduled to take 33 business days (weekends and holidays are not counted), approximately 45 calendar days. The trial against the journalist was scheduled by the court for August 7 (105 days after the events occurred), and he was summoned to court on August 5 (two days before the public hearing). In Luisma's case, 167 days had passed when the authorities announced that he would be tried under a summary procedure, in approximately 10 days, starting from March 2. The violation of the law is evident in both cases.
Finally, the main violation in this type of process is the right to a defense. The court will admit the defense attorney if the accused attends the trial with them. This has two consequences: first, a public defender is not guaranteed; second, once an attorney is appointed, they do not have access to the case file until the trial begins (Article 368 of the LPP). Furthermore, the prosecution is not obligated to appear at the trial to perform its duties.
Another violation of due process guarantees is the fact that Luis Manuel is forced to hire a lawyer from the National Organization of Collective Law Firms for his defense, because the courts only accept legal services contracts issued by this organization, violating the defendants' right to hire the lawyer of their choice.
The National Office of Criminal Justice (ONBC) was created by the legislature and cannot perform its functions without direct external interference from the executive branch (Ministry of Justice and Provincial Governor), which also controls the activities and conduct of its lawyers. The lack of independence of ONBC lawyers further violates due process guarantees and protections against torture, cruel, and degrading treatment, due to undue influence, pressure, or interference from authorities involved in criminal proceedings. This prevents ONBC lawyers from acting diligently and without fear, and from acting against the interests of their clients, especially when individual interests conflict with those of the state.
6- What tentative date have they given you for the trial?
They haven't announced a date. According to information we received from Luis Manuel's appointed lawyer, which was shared with members of the MSI, the case is already in court and a trial is possible next week.
7- Why is he being transferred to a regular prison (Valle Grande)? Is it legal to make him wait for the trial in that way?
According to information we received from members of the MSI, he will remain in pretrial detention for violating precautionary measures imposed on him on September 16, 2019. In other words, in the new case brought against him for an alleged crime of damage, the authorities decided to apply the precautionary measure of pretrial detention.
On March 4, 2020, he was transferred from the alternative detention center known as "El Vivac," in the municipality of Boyeros, to the prison located in the town of Valle Grande, in the municipality of La Lisa. According to Order No. 7 of December 1, 2016, issued by the First Deputy Minister of the Ministry of the Interior, which put into effect the Regulations of the Penitentiary System, pretrial detention is served in penitentiary establishments, state facilities intended for the confinement of persons accused, sanctioned, and secured within the penitentiary system.