Cuba: Treatment of "deserters," including family members that remained in Cuba, by authorities, society and the Revolution Defence Committees (Comités de Defensa de la Revolución, CDRs); application of Article 135.1 Dereliction of Duty of Law No. 62 (the Penal Code), in relation to deserters working for missions abroad (2012-May 2013)

1. Treatment of "Deserters"

Information on the treatment of "deserters," including family members that remained in Cuba, by authorities, society and the Revolution Defence Committees (Comités de Defensa de la Revolución, CDRs) was scarce among the sources consulted by the Research Directorate. However, the following information may be of interest.

In correspondence with the Research Directorate, a professor in the Department of Spanish and Latin American Studies at Dalhousie University, who specializes in the study of contemporary Cuba, indicated the following:

Based upon anecdotal evidence (speaking with Cuban friends and colleagues), the general impression that I have received is that there is very little discrimination against [Cuban returnees who had left the country and violated Cuban migration law].

I think that the favourable treatment given to some 400,000 Cuban exiles in the US who last year returned to visit family members in Cuba following the liberalization of US immigration law by the Obama administration would indicate-to a certain extent-the fact that barriers between Cubans on the island and those living abroad have significantly decreased in recent years. (3 June 2013)

In correspondence with the Research Directorate, a professor at Boston University who teaches sociology and international relations with a focus on Latin America and who has written on Cuban migration, expressed the following view:

[S]ome of the Cubans who left soon after the revolution and have been involved in 'terrorist' type plots abroad, I am sure would be watched closely and possibly not permitted back in the country. I have heard of some being hassled.

Most immigrants who visit Cuba left in the post Soviet era and are not particularly political. I do not know them to have experienced problems on return visits.

...

The days when émigrés were considered traitors [are] over. So many Cubans now emigrate and have family who have left [including high level functionaries] that there no longer is stigma attached to leaving the country.

My comments notwithstanding, I am sure there are isolated instances still of emigrants and their families experiencing problems. (26 May 2013)

In correspondence with the Research Directorate, a professor at the International Migration Studies Centre (Centro de Estudios de Migraciones Internacionales) at the University of La Habana indicated, from her point of view, that the families of Cubans who violated Cuban migration law [translation] "do not experience any problem or difficulty" in accessing any public service they are entitled to (10 June 2013). Corroborating or additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Dereliction of Duty

Section five of the Penal Code indicates the following:

[translation]

Article 135.1: An official or employee charged with a mission in a foreign country who quits, or, having completed the mission, or being asked at any time to return, expressly or implicitly refuses to return is liable to a penalty of three to eight years in prison.

2. The same penalty applies to officials or employees who, having completed a mission abroad and against the express order of the Government, move to another country. (Cuba 1987)

In an op-ed article published in 2004 in Encuentro en la Red, a Madrid-based news source on Cuban issues, lawyer Ana Grillé and law professor Orlando Gómez indicated that, since [translation] "there is no private property in Cuba over the modes of production, the majority of workers are considered public servants or state employees. If one person decides to apply for refugee protection or live in another country, they can be charged with the crime of Dereliction of Duty" (Encuentro en la Red 9 Sept. 2004). Elizardo Sánchez, a human rights activist and Director of the Cuban Commission of Human Rights and National Reconciliation (Comisión Cubana de Derechos Humanos y Reconciliación Nacional, CCDHRN), an "independent" organization that provides reports on the human rights situation in Cuba (OCDH n.d.), was quoted in ABC, a Madrid-based newspaper, as saying that [translation] "[under the charge of dereliction of duty], which is supposed to be reserved for public servants, the regime has condemned hundreds of athletes, physicians [and] students" (ABC 24 Aug. 2009). He also indicated that the charge of dereliction of duty is punishable by seven years imprisonment (ibid.). While not referring specifically to Article 135, the professor at the University of La Habana indicated that those who travel on official business in representation of Cuban institutions and decide to stay abroad without proper authorization will be barred from returning to Cuba for eight years (10 June 2013).

ABC also reports that athletes who decide to stay in another country after a competition and later decide to return back to Cuba because they "repented or by force, know that their careers are done and that they can be sent to prison" (ABC 24 Aug. 2009). The article also indicates that their families back in Cuba could face consequences (ibid.). Corroborating or additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

A report produced by Elizardo Sánchez and published in Revista Hispano Cubana indicates that, based on a list of political prisoners compiled by the CCDHRN, one person, Carlos Martínez Ballester, who had been charged with [translation] "revealing secrets concerning state security and dereliction of duty" and sentenced to 20 years on 30 December 2007, was later pardoned and released on 25 December 2011 (CCDHRN 10 Dec. 2011). According to Sánchez, the real number of political prisoners in Cuba is unknown since it is considered a "state secret" (2011, 143). The US Department of State's Country Reports on Human Rights Practices for 2012 for Cuba indicates that after several decades, the government published the number of prisoners in May 2012 indicating that 57,337 persons were incarcerated (US 19 Apr. 2013, 2). The same report indicates that "[t]here was no publicly available information about prison administration or recordkeeping in the prison system" (ibid., 4).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

ABC [Madrid]. 24 August 2009. Carmen Muñoz. "'Desertores' de elite." [Accessed 3 June 2013]

Comisión Cubana de Derechos Humanos y Reconciliación Nacional (CCDHRN). 10 December 2011. Algunos actos de represión política registrados en Cuba durante diciembre de 2011. [Accessed 3 June 2013]

Cuba. 1987. Código Penal. [Accessed 3 June 2013]

Encuentro en la Red. 9 September 2004. Orlando Gómez and Ana Grillé. "Lo que dice la ley: España y la emigración irregular cubana. ¿Prevaricación o insensibilidad?" [Accessed 3 June 2013]

Observatorio Cubano de Derechos Humanos (OCDH). N.d. "Comisión Cubana de Derechos Humanos." [Accessed 3 June 2013]

Professor, Centro de Estudios de Migraciones Internacionales, Universidad de la Habana. 10 June 2013. Correspondence sent to the Research Directorate.

Professor, Department of Sociology, Boston University. 26 May 2013. Correspondence sent to the Research Directorate.

Professor, Department of Spanish and Latin American Studies, Dalhousie University. 3 June 2013. Correspondence sent to the Research Directorate.

Sánchez, Elizardo. 2011. "Cuba a inicios de 2011." Revista Hispano Cubana. No. 39. [Accessed 3 June 2013]

United States (US). 19 April 2013. "Cuba." Country Reports on Human Rights Practices for 2012. [Accessed 6 June 2013]

Additional Sources Consulted

Oral sources: Attempts to contact researchers at City University of New York and Queens University were unsuccessful.

Professors at the Centro de Investigaciones Psicológicas y Sociológicas at the University of La Habana and University of North Carolina at Chapel Hill could not provide information.

Internet sites, including: Amnesty International; Australia - Migration Review Tribunal; British Broadcasting Corporation; Clarín; Cuba - Consultoría Jurídica Internacional, Gaceta Oficial; Cubanet; Diario de Cuba; ecoi.net; El Nuevo Herald; El País; Factiva; Freedom House; Granma Internacional; Havana Times; Human Rights Watch; Institute for War and Peace Reporting; International Crisis Group; International Federation for Human Rights; International Organization for Migrations; La Cubanada; Los Angeles Times; Miami Herald; Norway - Immigration Authorities; Radio Free Europe/Radio Liberty; Radio Martí; Telemundo; United Kingdom - Home Office; United Nations - Refworld, ReliefWeb, UN High Commissioner for Refugees; United States - Department of Homeland Security.