The publication made by the Supreme Court of Cuba, in which it invokes Article 393 of the Cuban Penal Code, referring to crimes against personal and family privacy, constitutes a clear example of lawfare or the political use of the law. The objective of this official narrative is not to protect citizens' privacy, but to use criminal law as a tool of intimidation to to prevent the violations committed from becoming visible, thus guaranteeing the impunity of state authorities in the face of repression, harassment and arbitrary arrests.
The legal right protected by Article 393 is “personal and family privacy.” The State's manipulation lies in pretending that actions of a public official or law enforcement officer, in the exercise of their duties and in public spaces, belongs to their private or family sphere.
A public official performing acts of authority—such as an arrest or an operation—is not exercising their private life. Recording these actions does not affect their "own image and voice" in the intimate sense protected by law, but rather documents a state act.
International law
The Inter-American Human Rights System (IACHR) has repeatedly established the “dual protection system”. This means that public officials, by the very nature of their positions, are subject to a higher level of scrutiny from society. Their actions in office do not enjoy the same level of privacy as those of an ordinary citizen.
Likewise, the UN Human Rights Committee in its General Observation No. 34 It emphasizes that, in matters of public interest, the right to seek and receive information protects the work of documenting police actions.
Asymmetry in law enforcement and illegal state recordings
The official publication deliberately omits that Article 393 It makes no distinction between citizens and public officials as active subjects of the crime. By imposing this narrative, the State conceals the fact that its own agents systematically violate this precept.
State Security and the Cuban police routinely subject citizens, activists, and journalists to non-consensual audio and video recordings while in custody, during criminal proceedings, interrogations, or arbitrary summonses.
The objective of these state-produced recordings is precisely to violate the privacy of the detainee, threaten him, fabricate decontextualized evidence, even for television programs, violating the presumption of innocence, and attempt to force him to refrain from exercising fundamental human rights such as freedom of expression and association.
The aggravating factor of Article 393.3 subsection C: The true conduct of the State
It is paradoxical that the Supreme Court attempts to dissuade citizens, when it is the authorities themselves who commit the aggravated offense described in the Section 3, paragraph c) of Article 393.
The law imposes harsher penalties when the recording, disclosure, or facilitation of information is carried out “out of enmity, revenge or other malicious intent, or with the aim of harassing the victim”.
When a citizen records a police officer repressing, the purpose is not "malicious" or harassment, but a legitimate form of social denunciation, self-defense, and documentation of human rights violations.
In contrast, when state agents secretly record citizens in public, disseminate images of their private lives to discredit them on social media, or film them during interrogations to blackmail them, they are acting directly motivated by a political enmity, revenge, and the express objective of harassing the victim.
The right to document human rights violations
The Special Rapporteurship for Freedom of Expression (RELE) of the IACHR and the UN have emphasized that taking photographs and video recordings of public security forces and other officials in the exercise of their duties is a protected human right.
Criminalizing those who document human rights violations using “privacy” or “disclosure of secrets” laws directly violates the right to freedom of information and the right to defend human rights, enshrined in the UN Declaration on Human Rights Defenders.
The interpretation of Article 393 by the Cuban Supreme Court is an intentional manipulation of the country's current criminal law. It seeks to transform a norm designed to protect human dignity against abusive interference in private life into a shield of impunity for officials. There is an attempt to criminalize citizen oversight while legitimizing the constant violation of privacy, image, and personal data that the Cuban State perpetrates systematically, aggravatedly, and maliciously against those who dissent.