The Cuban government's systematic practice of arbitrary arrests constitutes a flagrant violation of citizens' human rights. These arrests are used as a tool to stifle dissent and repress not only independent journalists and political opponents, but any citizen who expresses critical opinions.
Arbitrary arrests also constitute a form of political repression that has increased considerably in recent years. Regarding this issue, Raudiel Peña Barrios, a lawyer with Cubalex, addressed this problem on the program “Empower yourself, Cuban”, with journalist Iliana Hernández.
Photo: Screenshot from the live broadcast of the "Empower Cuban" program.
What to do in the event of an arbitrary arrest?
“The first thing to do in these cases is to document the arbitrary detention as thoroughly as possible. In that regard, we at Cubalex always recommend, to the extent possible, gathering as much information as possible about how the detention occurred and who the officials involved were. For example, it is always important to have the patrol car number on hand, because it is part of documenting the arbitrary detention. With that information, a Habeas Corpus petition can be filed.”.
Why is a Habeas Corpus needed?
“Habeas corpus was not previously recognized in the Cuban Constitution, but the 2019 Constitution expressly recognized it, although a habeas corpus procedure did exist in the former Code of Criminal Procedure. Now there are other procedures in the Code of Criminal Procedure, but the most important thing to understand in this case is that habeas corpus is a legal instrument to combat arbitrary detention or enforced disappearance. Essentially, it allows for the involvement of a court, that is, a group of judges, in the investigation of an arbitrary detention.”.
It's important for people to know that habeas corpus can be filed whenever a person is being arbitrarily detained. It can also be used if a person is detained or summoned to a police station and then communication is lost, at which point they can be considered to be in a situation of enforced disappearance. Habeas corpus is a fast-track procedure and a way to control that detention or enforced disappearance.
What rights does a person have in the face of arbitrary arrest?
“You have the right to a phone call with your family to inform them of your whereabouts, or failing that, the judges have up to 72 hours to inform your family of your location. One of the things your family can do is call the police stations, trying to locate the person. However, at Cubalex we have documented cases where you call the police station and they tell you that the person is detained, but in other cases, you call and they deny you the information, or conversely, you call and they tell you that they were there but that they transferred the person to another police station, but they don't know which one.”.
“If you are denied the right to make a phone call, one of the best things to do is for your family, colleagues, or friends to file a writ of habeas corpus as quickly as possible. Sometimes it's better not to call and instead go to the police station to gather information. It's very common for people like human rights activists in Cuba to be denied access to phone calls,” the lawyer explains.
Is the right to call your family mandatory once you are detained?
“Yes, but human rights defenders and independent journalists are denied this right. We have even recorded cases of people who are not political opponents, independent journalists, or activists, and the police simply do not let them make the phone call or allow it up to 24 hours after the arrest, but let it be clear that when they deny the call, it is an arbitrary act.”.
The lawyer emphasizes the importance of documenting due process violations. “For example, on such and such a day at such and such a time, I was detained, and they denied me a phone call at such and such a police station. It's important to identify the officer who denied the phone call because eventually a complaint can be filed with the Military Prosecutor's Office, in this case, because we're talking about military personnel, military officials.”.
“The best thing to do is document the situation and eventually, once you have access to your lawyer or are released—because many times these are short-term detentions used to harass, intimidate, and threaten—the effectiveness of filing a complaint is another matter, because we're not exactly talking about a state governed by the rule of law. Often, when a complaint is filed with the Military Prosecutor's Office regarding these types of situations, they say it's inadmissible and that no violation occurred.”.
Some tips Cubalex in the event of an arbitrary arrest:
1- Where did the arrest take place?
Identify the province, municipality, and area, including landmarks. This information is important for determining the competent court. In this case, it is important to report the location where the person was arrested and taken. If the arrest occurred on the street, note the street address and also the address of the police station or training unit to which the person was taken. Detainees may be transferred from one detention center to another. This information is also important.
2- When and at what time does the arrest occur?
Identify the date of the detention: (day, month, and year). This is relevant to determine when the violation began and to count the number of days the person has been missing. The exact or approximate time allows us to calculate the hours the person has been detained or missing and the legal deadlines, especially the time of communication with family or friends to inform them of the detention, as regulated by the Criminal Procedure Law (Art. 347 and Art. 130.1 b) and the Constitution (Art. 95, section h), or the time the authorities have held them without granting them the right to a lawyer, without formally charging them, and without imposing a precautionary measure, which should not exceed 24 hours.
3- Who made the arrest?
Report the rank and/or military position of the state agent responsible for the arrest or detention (criminal investigator). If this information is unavailable, it is helpful to identify them by their physical characteristics, alias, where they regularly operate, the registration number on the left pocket of their uniform shirt in the case of police officers, or the type of uniform if they belong to another branch of the Ministry of the Interior (MININT), for example: black berets, red berets (Revolutionary Armed Forces), soldiers on Active Military Service (SMA), or members of the Youth Labor Army (EJT).
Please note that these people may be part of a rudimentary armed group (with sticks) pretending to be civilians.
Report whether members of the Rapid Response Brigades participated in the arrest and whether they used violence at the time of the arrest.
If the arrest was made by an undercover State Security agent, it is important to ask if the detainee knew the agent beforehand because they had been systematically harassed ("The colleague who is handling this"). Ask if they know the agent's alias and any other evidence that could help identify them. Audio recordings of the agents' voices and photographs are evidence that can facilitate identification.
4- Has he/she been identified by other people previously?
This information is relevant for using international accountability mechanisms against perpetrators of human rights violations.
5- Did they identify themselves before the arrest and state the reason why they were identifying themselves??
If they were people in civilian clothes, add whether they showed any ID that identified them as state agents or if the person presented themselves in some way, explained the reasons for the arrest and if they referred to any legal motivation.
6- How was the arrest carried out??
This question is important to determine whether state agents improperly used force and violence against the detained person or subjected them to torture practices during their arrest.
The accused (detainees) must receive humane and dignified treatment throughout the entire process (Inc. A) -Art. 130) (Law 143 of Criminal Procedure Art. 130.1 to the right to humane and dignified treatment)
7- Under what conditions were you arrested and taken to a detention center?
Torture techniques: whether they used excessive violence and force, whether they beat him, whether they injured him and with what instrument, whether they applied restraint techniques, whether they tightened the handcuffs to intentionally cause pain, whether they exposed him to high temperatures; for example: locked in a hermetically sealed vehicle (greenhouse effect, a practice known as oven patrol).
Verbal insults are also a form of violence, and if they are related to skin color, gender, gender identity, or sexual orientation, it is also humiliating treatment.
Threats. For example: with dogs or with sexual abuse, intimidation with firearms, with taking his life or physically disappearing.
Humiliating treatment: if they undressed him or tore his clothes. If they forced him to squat while searching for objects in his genitals.
8- For what reasons can a person be arrested?
It is important to describe whether the arrest occurred in the context of a protest, a specific event, while performing duties as a journalist, and any other circumstance that allows identifying a violation of a fundamental right.
Cubalex emphasizes the importance of legally documenting all violations that occur during arbitrary detention. The compilation of this documentation serves as a basis for filing complaints with international organizations, thus contributing to documenting the current human rights situation in Cuba.