The Constitution of the Republic of Cuba of 1940 It established one of the most advanced systems of constitutional guarantees of its time in Latin America. Section c) of Article 182 granted jurisdiction to the Court of Constitutional and Social Guarantees—an independent judicial body responsible for hearing appeals for protection, actions of unconstitutionality, and protecting citizens against abuses of state power—to resolve habeas corpus petitions by way of appeal or when claims made before other authorities or courts had proven ineffective.
That constitutional design responded to the guarantee-oriented nature of the 1940 Magna Carta, which It recognized that Cuban citizens had effective mechanisms to protect their personal freedom. Habeas corpus was then an extraordinary action intended to safeguard the individual against any illegal deprivation of liberty, allowing recourse to the highest judicial body when lower instances had not offered effective protection.
The 1940 Constitution, however, was never reinstated, despite the promise made by Fidel Castro in his defense statement during the trial for the events of the attack on the Moncada Barracks in 1953. After the triumph of the Revolution on January 1, 1959, that Constitution was modified by the Fundamental Law of the Republic of Cuba of February 7, 1959, which adapted the constitutional text to the demands of the new revolutionary process and served as the supreme transitional norm while the new government was consolidated and a new constitution was drafted.
Transition to the 1976 Constitution
That new constitution was the Constitution of February 24, 1976, which represented a structural break with respect to the constitutional model of 1940. The 1976 Constitution radically transformed the legal nature of rights in Cuba: It went from a liberal democracy model with a wide catalog of rights and guarantees to a socialist one-party state model, headed by the Communist Party of Cuba.
The new constitutional order eliminated private ownership of the means of production, replacing it with socialist state ownership and centralized economic planning. It also suppressed freedom of enterprise and deactivated judicial oversight of constitutionality. The Constitutional and Social Guarantees Court was abolished, and in its place, the National Assembly of People's Power (ANPP) became the highest body for oversight and constitutional control, albeit under strictly political conditions and subordinate to the directives of the State and the Communist Party.
As for the individual rights and freedoms recognized by the 1940 Constitution—such as freedom of expression, of the press, of association, and habeas corpus—their exercise was subordinated to the aims of socialist society. The Constitution stipulated that none of the civil liberties could be exercised against the existence and objectives of the socialist state.
The treatment of habeas corpus was particularly significant.. Under the 1940 Constitution, this institution functioned as a true shield for citizens against state power. The judge exercised control over police and bureaucratic actions, and habeas corpus had explicit constitutional status in Articles 28 and 29 of that Magna Carta. It was considered a fundamental and inviolable political right, directly protected by the Constitution.
With the entry into force of the 1976 Constitution, habeas corpus lost that constitutional status and was relegated to a subordinate norm.Law No. 5, of August 13, 1977, “On Criminal Procedure,” was established as a special ordinary procedure within Book Six, Articles 467 to 478 of said law. In practice, it ceased to be an effective instrument of control against state power and It became a mechanism of institutional validation, subordinating individual freedom to formal socialist legality.
The scope of judicial action was reduced to verifying whether the police or the public prosecutor's office had formally complied with the legal requirements established by the State itself for detention. In this way, habeas corpus was distorted in its universal character and its absolute diffuse control. Under the 1940 Constitution, the courts could not decline jurisdiction, and the remedy was available against any public authority, official, military officer, or private individual who illegally detained a person.
However, Article 467 of the Code of Criminal Procedure introduced a particularly restrictive limitation: habeas corpus was not applicable when the deprivation of liberty was based on a sentence or a provisional detention order. In the Cuban penal system, provisional detention is imposed by the prosecutor, that is, by a non-collegial body belonging to the state apparatus itself. This effectively shielded the vast majority of detentions carried out during investigative proceedings from habeas corpus.
This was compounded by the subordination of the people's courts to the political directives of the state, which weakened the judicial independence necessary to sanction arbitrary actions by high-ranking police or military officials. In practice, the procedure was reduced to requesting reports from the relevant authorities—usually the Ministry of the Interior or the Public Prosecutor's Office—and, once the actions had been formally verified, the requests were summarily rejected.
The 1940 Constitution mandated the immediate physical appearance of detainees before a judge within strict deadlines. Any delay or bureaucratic maneuver could result in immediate criminal liability for the responsible official.
The now-repealed Law No. 5 of 1977, while formally maintaining the “summary” nature of the procedure and establishing short processing times, transformed habeas corpus into a merely documentary and instrumental review. This logic continues to be reproduced under the current Law No. 143 of 2021, where the courts essentially limit themselves to comparing the detention with the legal powers of the police investigator or the prosecutor, transforming the procedure into a bureaucratic formality rather than an effective mechanism for protecting rights.
Despite this distortion, it is fair to acknowledge that during the validity of Law No. 5 There were judicial authorities who attempted, within the narrow confines of that legislation, to restore habeas corpus as a shield for citizens against power state.
An example of this wasand the special habeas corpus procedure promoted by the lawyer of Cubalex, Julio Ferrer, and filed under Roll No. 2 of the year 2000 in the Criminal Chamber of the Supreme People's Court. The magistrates in charge of the case allowed access to the proceedings contained in the file, held a public hearing, carried out the proposed evidence and listened to the oral reports of both the prosecutor and Ferrer, then a lawyer for Bufetes Colectivos.
As a result, by means of Order No. 31 of June 21, 2000, lThe court granted the habeas corpus petition, ordered the immediate release of the person in whose favor the appeal had been filed and disciplined the judges who had illegally deprived that person of their liberty.
Current context
In the current context of the Cuban judiciary, it is unthinkable that judicial authorities would conceive of habeas corpus as a true shield for citizens against the power of the State.
Law No. 143, of October 28, 2021, on Criminal Procedure, In matters of habeas corpus, it constitutes a failed attempt by the Cuban authorities to harmonize this institution with the constitutional recognition contained in Article 96 of the current Constitution, a recognition that remains essentially declaratory.
Like its predecessor, Law No. 5 of 1977, Law No. 143 fails to fully realize the guarantees of due process. The accused continues to be treated more as an object of the criminal proceedings than as a party on equal footing with their counterpart: the prosecutor, who holds the public power to initiate criminal proceedings in the Cuban justice system.
Specifically, regarding habeas corpus, Article 796.2 of Law No. 143 establishes that the appeal must be resolved within three days, “after first hearing the prosecutor.” The rule does not contemplate holding a public appeal hearing nor does it guarantee the possibility of hearing the oral or written arguments of the defense attorney in this second instance.
From the perspective of the right to a defense, this provision introduces a clear imbalance of power. While the Public Prosecutor's Office—a state body—has the final opportunity to influence the Supreme Court justices' decision and justify the detention, the defense attorney is completely excluded from this crucial phase of the proceedings.
The defense must limit itself to the arguments previously set forth in the appeal brief, without the possibility of knowing, confronting or replying to the confidential reports sent by the prosecutor or by the authority that keeps the detained person in custody.
Since the appeal is resolved internally and exclusively through documentation, “at the table,” and by only listening to the prosecutor, the Supreme Court's review is reduced to verifying whether the provincial court formally justified the legality of the detention and whether it conforms to the legal frameworks established by the system itself.
A clear example of this violation of the principle of contradiction and the inequality of arms contained in Article 796.2 of Law No. 143 is Order No. 10, dated April 7, 2026, issued by the Criminal Chamber of the Supreme People's Court, which summarily rejected the appeal filed against the Order of March 12, 2026, of the First Criminal Chamber of the Provincial People's Court of Artemisa, which had also summarily rejected the proceedings of habeas corpus proceedings brought in favor of Luis Manuel Otero Alcántara.
The Criminal Chamber of the Supreme Court The appeal was resolved by listening only to the prosecutor and without the participation of a defense attorney. The essential basis of the decision was a report from the management of the penitentiary establishment where Otero Alcántara is incarcerated, according to which the inmate was not deserving of the benefit of a two-month reduction of sanction for each year served due to alleged inappropriate behavior.
However, given the exclusion of the defense in the appeal stage, such claims could not be confronted or subjected to adversarial debate. This situation placed Otero Alcántara in an obvious state of defenselessness.
Cuban citizens today find themselves in an increasingly vulnerable position regarding their fundamental rights in the face of the excessive power of the State. The normative and institutional evolution of habeas corpus in Cuba demonstrates a shift from a constitutional mechanism designed to limit public power and protect individual liberty, toward a procedure subordinated to political logic and state control, where judicial guarantees are becoming ever more restricted.