According to international standards, the detention of an individual is conditional upon clearly defined reasons regulated by law. Laritza Diversent, a lawyer and director of Cubalex, addressed this on the program. “Empower yourself, Cuban”, The program, hosted by journalist Iliana Hernández, explains the reasons why authorities can arrest a person, according to current Cuban legislation.
Photo: Screenshot from the live broadcast of the "Empower Cuban" program.
Which authorities have the power to make arrests?
Laritza Diversent clarifies that, according to international regulations, only officials duly authorized by law have the power to make arrests. In the Cuban context, legislation establishes that four entities have the capacity to carry out arrests: police officers, investigators, the court, and the public prosecutor's office; all others are considered auxiliary. The Ministry of the Interior, for its part, is responsible for conducting investigations. However, State Security agencies have investigative bodies, meaning that a State Security investigator does have the authority to detain a person.
The problem with Cuban law, he explains, lies in the fact that it grants authorization for the detention of any individual, thus contravening international standards that stipulate that this power should be exclusive to duly trained officials. It is essential that the authorities have, first and foremost, the capacity to protect individual rights. In this regard, “no person should be subjected to torture, a right recognized internationally and in the Cuban Constitution, nor should they be subjected to enforced disappearance.”.
Diversent clarifies that, regarding regulations on detention in Cuba, the following are notable: discrepancies between the Criminal Procedure Law and the Constitution. “Law 143/21 grants the power to detain to the authorities, but also to citizens in certain circumstances. Article 343 of the Criminal Procedure Law establishes that any person can make an arrest. However, the Constitution, specifically in Articles 94 and 95, indicates that only competent authorities can make arrests.”.
To make an arrest, state agents must be trained; they cannot simply use certain techniques or procedures. The power to detain should not be granted to just anyone. The Constitution itself establishes that only competent authorities can deprive you of your rights, he explains.
What are the reasons why a person can be arrested in Cuba?
According to Article 341 of the Code of Criminal Procedure: “No one may be detained except in the cases and with the formalities established in this Law.” In this regard, Article 343 establishes the reasons why a person may be detained:
a) Anyone who attempts to commit a crime, at the time of committing it, during its execution or immediately afterwards; b) anyone who, through escape, has broken a sanction of deprivation of liberty, their detention, a security measure of internment or the precautionary measure of provisional imprisonment that they are serving; c) anyone declared in rebellion (Article 343).
“Subsection a) refers to flagrant offenses, when you are committing a crime and are caught in the act. In this case, an arrest warrant is not required because it is happening at the moment, and the authorities must act. Subsection b) refers to prison escapes, when a person flees from a station, correctional facility, or prison. Subsection c) refers to contempt of court proceedings, for example, trying people who are outside the country to initiate criminal proceedings. This person is summoned by the court, and if they fail to appear, the Ministry of the Interior summons the person to appear, and the trial proceeds in their absence.”.
When an arrest occurs, Diversent points out, “it must be clear that they cannot keep you in a cell if they have not shown you an arrest warrant, which is a very common practice of the Cuban authorities, hence the importance of documenting the process, because what is not reported does not exist.”.
Every action by the authorities must be backed by the Law, and in this context, omission creates discretion in the hands of the authorities, thus facilitating arbitrary arrests and giving the Police excessive power that exceeds legal limits.
What is the difference between an arrest report and an arrest warrant?
According to Diversent, it is crucial to distinguish between an arrest warrant and an arrest record. “Before arresting someone, the police officer or state agent must obtain authorization from a court, a process known as judicial review of the arrest. This process requires the police officer to have initiated an investigation and determined that there is sufficient evidence to proceed with the arrest, requesting authorization from an independent and impartial authority, in this case, the court. This ensures judicial oversight throughout the entire procedure.”.
The arrest record, for its part, is a document intended to record the details of the arrest. It is a requirement under international law, especially in accordance with the Mandela Rules, which stipulate that all detainees must be properly registered. It is not an arrest warrant or a statement of charges; rather, it constitutes an essential record for preventing enforced disappearances. Recording the detainee's entry and exit times is fundamental, he explains.
Furthermore, it emphasizes that the arrest record not only serves as a safeguard against enforced disappearances, but also establishes that any incident while in police custody is the responsibility of the authorities. In the case of Cuba, the authorities have discretion regarding the reason for the arrest, as well as the recorded time, so the detained person has the right to demand to read the record before signing it.
Is it important to sign the arrest report?
Signing the arrest report is essential to guarantee the protection of our rights, Diversent points out. If possible, “even under pressure, it is recommended to accurately determine the time the arrest took place and when the corresponding report was drawn up.”.
In this regard, Diversent advises that, when signing, it is important to express disagreement with the reason for the detention—if applicable—"indicate whether or not the reason for the detention was explained, and describe the circumstances in which it occurred to document possible violations to which the detained person is subjected. It is also crucial to specify the correct time of the detention when signing, avoiding leaving space for them to add information.".
The detained person has the right to demand a copy of the arrest report. “Refusal to sign means that the authorities do not present the report, which hinders the review of potential violations committed while in custody. Subsequently, they seek witnesses to confirm the refusal to sign, and this information is filed in the preliminary investigation file, without reflecting reality.” In the future, Diversent points out, a copy of this document can be obtained through a lawyer, making it possible to document due process violations.