Habeas corpus is a fundamental legal guarantee that protects personal liberty against illegal detentions or restrictions on freedom. It consists of a swift and summary legal procedure whose objective is:
-Verify the legality of the arrest: It is examined whether the person has been arrested with the due guarantees and following the corresponding legal procedure.
-Obtain immediate freedom: If it is proven that the detention is illegal, the judge will order the immediate release of the person.
-Protect against arbitrariness: It seeks to prevent the authorities from depriving a person of their liberty without justified reason or without following the established rules.
In essence, this legal recourse translates to "body control," symbolizing the individual's right not to be detained or prosecuted without legitimate cause. On this important topic, the lawyer Raudiel Francisco Peña Barrios She spoke with Cuban journalist Iliana Hernández on the first program of 2024 of Empower yourself, Cuban.
Photo: Screenshot from the live broadcast of the program “Empower Cuban,” hosted by journalist Iliana Hernández.
How should a Habeas Corpus petition be filed from Cuba?
“The first thing to note is that anyone can file a Habeas Corpus petition. It's a very simple document. The first step is to identify the court that will receive the Habeas Corpus petition. It's important to know that, according to the Cuban Code of Criminal Procedure, if the arrest is carried out by a police officer or an agent of the Ministry of the Interior, State Security, or any other institutional body of the Ministry of the Interior, the Habeas Corpus petition is filed with the Provincial Court.
It is advisable to take it directly to the Provincial Court, not the Municipal Court. What happens in Cuba is that, in practice, according to Article 787 of the Criminal Procedure Law, if a Provincial Court orders the detention—that is, if a judge of a Provincial Court issues a warrant or orders the arrest of a person—then the Habeas Corpus petition would have to be filed with the Supreme Court. However, empirical evidence shows us that this almost never happens, and that arbitrary detentions and enforced disappearances are carried out by officials of the Ministry of the Interior (MININT), so the petition goes directly to the Provincial Court. Cuban law does not grant any authority to the Municipal Court to process Habeas Corpus petitions.
The lawyer points out that information about the location of courts throughout the country is available on the website of the Supreme People's Court of Cuba. It is important to verify this information to directly obtain the location of the courts in each province, thus facilitating access for the public. In the specific case of the Isla de Pinos municipality, the information is provided by the municipal court, he notes.
What information does a Habeas Corpus contain?
In the case of a habeas corpus petition, the first requirement is that it must be filed by one person on behalf of another. A family or friendship relationship is not essential to file a habeas corpus petition. However, the lawyer points out that, while not necessary, having a family relationship can be beneficial, as it provides someone who can file this legal recourse on behalf of the detained person.
The Cubalex legal team recommends following several steps to prepare a Habeas Corpus petition:
The first thing to do is to enter the information of the person who is filing the appeal. The data would be as follows:
1-Name of the person requesting the initiation of the procedure on behalf of the detained person. It is not necessary that there be a relationship between the person and the person submitting the request.
2-Detained persons have the right to submit the petition themselves or through third parties, on their own behalf or on behalf of any person. (Article 96 of the Constitution and Article 786 of the Law of Criminal Procedure).
This information is then accompanied by the following sentence:
“I come here by my own right and in my capacity as a person, relying on the provisions of Article 96 of the Constitution of the Republic, which is complemented by Article 787 et seq. of the current Law of Criminal Procedure, to file a request for Habeas Corpus in favor of the person to be named. The Court to which I am addressing myself is competent to hear this request, by virtue of the provisions of subsection a) of Article 788 of the aforementioned legal body.”
Is it mandatory to have the identity card of the person to whom the Habeas Corpus is addressed?
It's not mandatory, but it's recommended to personalize the information as much as possible. "We explain that if you don't have the identity number, you can use the date of birth, if you know it. Ideally, you'd have the complete identity card, but even without that information, the Habeas Corpus petition is completely valid. The same applies to the address. You might not know the address where the detained or missing person usually lives, so you simply provide the municipality and province. What is important, however, is to include the person's full name.".
Furthermore, a habeas corpus petition must include a description of the circumstances surrounding the person's arrest. “It's best to have as much information as possible about how the arrest occurred. That is, include the names of the officers involved, if possible, the circumstances of the arrest, and then a description of what the person was doing at the time. It's important to understand that the courts operate Monday through Friday from 8:00 a.m. to 5:00 or 6:00 p.m. These are the hours for receiving documents.”.
Cubalex lawyers recommend that, before filing a habeas corpus petition, the first step is to contact a police station to try to locate the detained person. “If we know the location of the police station where they were detained, we include that information in our habeas corpus petition. Then we must explain why the detention is arbitrary and illegal. Arbitrary detentions occur when someone is exercising a human right, such as freedom of expression, freedom of assembly, or simply freedom of movement.”.
Generally, arbitrary arrests occur when someone is exercising a fundamental right, which is recognized both in the Cuban Constitution and in international treaties. “That in itself makes it an arbitrary and illegal arrest, and that is precisely what we include in this fourth section. If we have information about the time of the arrest, it is good to include it in the document.”.
The fifth point of the guide states that Article 94 of the Constitution establishes that individuals cannot be deprived of their rights except by a reasoned decision of a competent authority. This means that when a person is detained, theoretically there must be a written arrest warrant against them, the lawyer explains.
Section six deals with incommunicado detention and the lack of formal charges against the detainee. “The police detain you in Cuba and have 24 hours to make a decision regarding you. If, within those 24 hours, the person has not been formally charged, and they are being held in a cell without allowing you to contact your family or friends, then you are being subjected to incommunicado detention, and it is important to notify the court of this situation. If you file a writ of habeas corpus and 16 hours have passed since the detention, include this information and clarify that during those 16 hours you have not been able to communicate with the person, that you know nothing about them, and that you have been unable to hire a lawyer because you do not know what charges they are being brought against you. This also provides evidence that the person has not been informed of their rights.”.
The seventh point of the guide highlights that in cases of incommunicado detention, the detained person is prevented from exercising the rights established in Article 94 of the Constitution, specifically access to legal assistance as part of the guarantees of due process. “If the person is being held incommunicado, it is impossible for them to ask their family to hire a defense attorney. However, if the detained person has already communicated with their family, the seventh point of the guide does not apply.”.
The eighth point of the document presents the argument regarding enforced disappearance. “This is very important since enforced disappearance almost always occurs after this type of detention, that is, up to 48 hours detained and nobody knows anything about you, you are incommunicado.”.
The ninth point of the guide is an obligation established in an international treaty: the Court's obligation to report enforced disappearances and protect all persons involved in reporting them. This paragraph is only included if the person is subject to enforced disappearance, meaning their whereabouts are unknown.
The specific requests are included in the final section of the Habeas Corpus petition. Essentially, the points listed in the guide are filled in, and the name of the person who filed the petition is written where the X's appear, the lawyer explains.
Operational instructions for filing a Habeas Corpus petition:
1- Print four copies of the document.
2- Submit three copies to the Court and keep one copy for the person receiving the Habeas Corpus.
3- Acknowledgement of receipt. In this case, it is necessary to include the date, name, position, signature, and the number assigned to the document in the court's registry. This may seem very technical, but courts in Cuba maintain a logbook where each document submitted is numbered. When you file a Habeas Corpus petition, that document receives a number. This number serves as proof that it was received by a provincial court and that they are obligated to provide a response.
4- Send all this information to Cubalex so that they have a record and can prepare a file to follow up on the case.
For more information we recommend consulting the guide Prepared by the Cubalex legal team.