Summary
The issue of constitutional guarantees is in force and with this investigation we can point out how our legal system regulates the guarantees of said rights. Every Constitution is a set of legal norms that regulate the exercise of power, as well as the legal status of individuals in society. This concept designates the socio-economic and political phenomenon of a society at a given moment.
The expression that we consider most appropriate and that we believe best delimits the current theoretical situation of human rights would be Fundamental Rights of Man. With it, it is intended to manifest that every person has moral rights by virtue of being one and that these must be recognized and guaranteed by society, law and political power without any type of social, economic, legal, political or ideological discrimination, cultural or sexual.
The system of legal guarantees in force in Cuba, since the promulgation of the 1976 Socialist Constitution, presents limitations and insufficiencies, so that as a partial conclusion, after the investigation, the updating and expansion of the same is suggested.
Introduction
The issue of human rights occupies an important place both in Constitutional Law and in Political Science, which is why it has received an outstanding treatment at the international level and in the generality of the countries, being the subject of extensive debates that the more burning controversies, both on the theoretical-doctrinal and political-ideological levels.
Much has been said about human rights, however, it is always unsatisfactory to speak about this topic, since not everything is said and done about it, since it is difficult to achieve consensus and the solution to the diversity of aspects that revolve around the problem. of them and the new challenges that are making their way with greater force every day, such as the update of the catalog contained in the fiftieth anniversary of the Universal Declaration of Human Rights of December 10, 1948 which, already requires, the inclusion of the new demands of the contemporary world and mainly from underdeveloped countries.
The issue of human rights cannot be seen in the strict sense of its formal recognition, but must also include the protection mechanisms that ensure its real effectiveness in social relations. The constitutional recognition alone is not enough if it is not accompanied by guarantees that ensure the effectiveness of the free exercise of rights.
Cuba, in its condition of Socialist State, advocates the ideal of defense and real realization of human rights, on equal terms for all. However, even when there is such demonstrated political and state will in favor of human rights, this does not imply that society is free from the occurrence of attacks, threats, ignorance and limitations on the rights recognized to individuals. Proof of this is the number of complaints that citizens make to the different instances of the Office of the Attorney General of the Republic, the other state organs and their dependencies, and even to political and mass organizations.
For the development of this investigation, the author considered knowing what are the insufficiencies of a normative and practical nature that legal guarantees present in Cuba? Starting from the hypothesis that: The guarantee of fundamental rights in the constitutional text requires an expansion and uniform legal regulation. Therefore, the objective has been to analyze the regulation of the guarantees of fundamental rights in the current Cuban constitutionalism.
In this way, we present an exegetical and critical study of legal guarantees in the current Cuban legal system and the possible solutions that can be offered to the previously identified problems will be evaluated.
Development
The guarantees in the Cuban legal system
The objective of this topic is to analyze, from an exegetical and critical point of view, the regulation of the guarantees of fundamental rights in Cuban constitutionalism, pointing out the deficiencies that affect its proper functioning, and subsequently starting from the analysis of the field work carried out in Based on surveys of legal professionals, formulate a proposal for legislative bases for the improvement of said guarantees.
Exegetical and critical analysis of legal guarantees
Constitutionalization
Our Constitution is entitled Chapter VII Fundamental Rights, Duties and Guarantees, although there are rights, duties and guarantees in other chapters, which does not mean that there are privileged categories of rights in the Constitution. They all enjoy the same legal level.
Among civil and political, or first generation, rights, the catalog includes: freedom of speech and press (article 53); the right of association, assembly and demonstration (article 54); the right to freedom of conscience and religion (articles 8 and 55); the inviolability of the domicile (article 56), of correspondence (article 57) and of the person (article 58); the right to due process (articles 58, 59 and 61); to address complaints and requests to the authorities (article 63); to active and passive suffrage (article 131) and the right to defense by all means including armed struggle (article 3). Second-generation socio-economic and cultural rights are also regulated: the right to work (article 45) and linked to this the right to rest (article 46), to social security (article 47),social assistance and protection, safety and hygiene at work (article 49); the right to health (article 50); to education (article 51); to physical education, sports and recreation (article 52); freedom of artistic creation (article 39 ch) and scientific research (article 39 c).
The right to citizenship is also established (article 32); to marriage (article 36); equality (articles 41 and 42); the equality of children (article 37); the right to private property on land (article 19); to personal property (article 21); to inheritance (article 24) and the right to obtain reparation or compensation in the event of damage or loss by state officials or agents (article 26). Article 27 establishes the responsibility of the State to protect the environment and natural resources of the country, a provision that implies the right of citizens to enjoy a healthy environment.
This Constitutionalization requires updating, as there are third generation rights that are not regulated in the text. These include the right to privacy, the right to honor, the right to information, to one's own image, to the development of personality, computer rights, freedom of movement, the inviolability of communications. An interesting aspect, according to Professor Villabella, is that the constitutional statement does not make it possible to infer the validity of the rights vis-à-vis third parties in a society where commercial relations are no longer only with the State, but also with a sector of the capital economy. mixed or even entirely private.
When analyzing human rights in Cuba, it cannot be ignored that the legitimation and materialization of these have been in the midst of constant aggressions by the United States, so it has been necessary to limit some of them, such as the case of the freedom of speech and press, which can only be exercised in accordance with the aims of socialist society; in addition to establishing in article 62 that none of the recognized freedoms can be exercised against the Constitution and the laws, nor against the purposes of the State, but they are necessary limitations for reasons of national security, and the defense of revolutionary conquests.
Furthermore, within the State doctrine that Cuba defends, which is nothing more than the well-known Dictatorship of the Proletariat, one of its most determining elements is precisely not being hypocritical when trying to defend all classes equally, which State as the conciliatory entity of the everyone's interests, declassed as a political organization. Some of these limits also respond to conditioning factors of this type.
If the rights that appear in the text of the Cuban Constitution are compared with those that appear in the Universal Declaration of 1948, it can be seen that with the exception of the right to life (article 3), the right to recognition of legal personality (article 6) and the right to freedom of movement and emigration (article 13), all others are contained.
With regard to legal personality, it is worth clarifying that the Civil Code does refer to it by establishing in article 24 that personality begins with birth and ends with death.
As for the right to life, although it does not appear as such in the constitutional text if it is protected in the Penal Code and in the International Covenant on Civil and Political Rights. The truth is that the right to life in Cuba has two limitations, which are abortion and the existence of the death penalty as the main sanction. The issue of abortion has brought multiple contradictions with the Catholic Church, when it considers the fetus to be the bearer of human rights, and the State has not; however, the Criminal Code regulates among the crimes against life, illegal abortion (article 267).
For many years there have been questions between supporters and enemies of the death penalty, including at the international level. The International Covenant on Civil and Political Rights, in article 6 states that no one may be arbitrarily deprived of life, and that countries that have not abolished capital punishment may only impose it for the most serious crimes, and with a final judgment of competent court.
Cuba contemplates said sanction in article 29 of the Penal Code, but only imposes it for crimes considered very serious, exceptionally, and never to minors under 20 years of age or to women in pregnancy.
It is worth noting the current existence of a second Moratorium on the Death Penalty, decreed by the Council of State. A first Moratorium was in effect from 2000 to 2006, with three exceptions in 2003.
Freedom of movement at the national level is guaranteed, with the exception of the province of Cáceres, where special regulations have been established, according to Decree No. 217 of the Council of Ministers, for reasons of population density, due to the massive emigration from the interior of the country, with the consequent housing problems.
As for freedom of emigration in Cuba, it is regulated by the Migration Law and numerous administrative provisions issued by the Organs of the Central State Administration and especially by the Ministry of the Interior. This is an issue that has been misrepresented in recent years in defamatory campaigns against the country and the government, a situation that has been aggravated by the Cuban Adjustment Law, approved by the United States Congress in 1966 with the purpose of encouraging exits. illegals of Cuban citizens to US territory. However, within the country there is also a debate related to excessive regulations and prohibitions regarding emigration; especially after authorization to acquire telephones and hotel services in freely convertible currency.
Cuba has an immigration policy that regulates specificities in the procedures, requirements to fulfill to leave the country, etc.; These regulations may vary according to different interests, be they economic, political, social, military.
Legal guardianship
The Cuban Constitution is not a norm of direct application, but a programmatic one, which contains norms and principles, that is, it requires ordinary regulations to achieve its applicability, for which reason it is necessary to complete the constitutional requirement through the approval of laws. developmental.
This is a great debate. Most of the country's constitutional scholars are of the idea that it is directly applicable. However, a considerable number of jurists consider that it would be very complicated. On the other hand, and in an obvious way, there is no political will to make any change in this regard. The truth is that there is no rule that prevents the Constitution from being applied directly, but it is not done.
Most constitutional rights have a subsequent legal protection, for example the right to defense is regulated in the National Defense Law, the Labor Code protects the right to work of all citizens and the Law on Assistance and Social Security protection to the injured, or disabled of various kinds.
Also the rights to health, education, culture, and physical education, sport and recreation, as they constitute as bulwarks for the defense of human rights in Cuba, are duly guaranteed, by laws that implement them. However, it is worth noting the criticism made of the conceptual error of absolutizing material guarantees in Chapter VII, since at no time does it refer to other mechanisms of constitutional dogmatics.
One of the rights established in the Constitution is the freedom of artistic creation, whose legal protection is insufficient. Article 50 of the Cuban authorial law, referring to violations of copyright, declares that "violations of copyright are punished in the manner established by current criminal legislation, and those affected may exercise the corresponding actions", and without However, resorting to the Penal Code in Title VI regulates Crimes against Cultural Heritage, and is devoid of protection of copyright and related rights.
There are rights that without having an express presence in the Constitution are duly protected by other laws or provisions, for example the right to life that the Penal Code, Law 62/87 protects in Title VIII called Crimes against Life and Corporal Integrity. On the contrary, there are precepts that, having legal reservations, do not have further development, and mention may be made of article 53 that regulates the right to speak and press and article 55 that regulates freedom of conscience and religion, even according to professors Ángel Mariño, Daniela Cutié and Josefina Méndez the Complaint Right of article 63, presents a reservation of law not yet saved, others however see in the action of the Department of Protection of Citizen Rights this protected resource.The last and scarcest variant is the existence of those rights that, having constitutional regulation, and adequate legal protection, are constantly violated, and not restored, such as the inviolability of correspondence.
Institutionalization
The Fundamental Law of 1959, which had assumed the constituent, legislative, executive and administrative powers, made that in the new Constitution of 1976 everything concerning the constitutional revision was deposited in the National Assembly of People's Power, which would carry out its task to through the Committee on Constitutional and Legal Affairs.
Entities that watch differently for the Constitution:
A) The People's Power: It does so through the National Assembly and its Committee on Constitutional and Legal Affairs, which issues a constitutional opinion on the projects presented, that is, since the Law was created, it does so with an endorsement of constitutionality.
Article 75 subsection c of the Constitution empowers the National Assembly of People's Power to decide on the constitutionality of laws, statutory decrees, decrees and other general provisions, although inexplicably, this action is virgin.
The Council of State, permanent body of the National Assembly that represents it between one session and another, may also suspend provisions of the Council of Ministers, as well as agreements and provisions of local assemblies when they do not comply with the Constitution, as well as can revoke agreements and provisions of local administrations that contravene the Constitution.
The Municipal Assemblies, as local representative organs, have the power to revoke or modify agreements and provisions of the organs or authorities subordinate to them that violate the Constitution and provisions of the superior organs of the State that affect the interests of the community.
With the existence of the National Assembly of People's Power, the supreme organ of state power, the idea prevails that it is necessarily just because it carries out the will of the people; thus the safeguard of the Constitution is in the power of the only body that has the constituent and legislative power, which many justify by the fact that if the people are represented in the Assembly, because it was the people who, by their direct vote, elected its components, then no one better than the people to defend its Constitution.
The defense of this cannot be left to the inspection, at the request of individuals, nor can it be the exclusive task of the body that is precisely in charge of preparing the law, since the possibility of being judge and party would be left in their hands.
B) The Office of the Prosecutor: It watches over citizens' rights and responds to their complaints, in addition to verifying the respect of constitutional guarantees, being able to rule at the request of the National Assembly of People's Power or the Council of State about the constitutionality of the laws, Decree-laws, decrees, and other provisions, as established in Article 8 of the Prosecutor's Law.
As a partial conclusion, we can point out that the constitutional control that is carried out in Cuba can be considered political, since the revision of the constitutionality of the norms is deposited in the legislative body, although it offers a wide range of participants, despite having certain disadvantages because the absence of judicial control is noted, which results in the person who is the sole party in the process becoming a judge, and prevents the impartiality of decisions. On the other hand, the control carried out by the Prosecutor's Office is insufficient, its decisions have no binding force, since the prosecution is not a power body.
Procedure
To protect the constitutionality, there are civil, criminal, labor and administrative procedures.
With the entry into force of the 1976 Socialist Constitution, and the change in the components of the state machinery, in Cuba the guarantee system is characterized by a limited use of jurisdictional methods; together with the exclusion of the appeal of unconstitutionality of the affected party. The limitation is given by the fact that there is no constitutional jurisdiction as such, since the courts only ventilate ordinary processes through which rights are protected; This does not mean that these are not important, on the contrary, the people's courts are true guarantors of individual rights, only that sometimes their work is not enough.
Civil proceedings
1. Amparo: The LPCAL regulates three types of protection: (articles 393-424).
- the protection in judicial proceedings, the protection in possession against acts coming from individuals or from authorities or administrative bodies and the suspension of new work.
2. Succession process: The constitution in article 24 only protects the right to inheritance.
3. Compensation for damages: He who unlawfully causes damage or injury to another is obliged to compensate him (article 82 of the Civil Code); This compensation includes, according to article 83, the restitution of property, the repair of material damage, compensation for damage and reparation for moral damage.
Limitations:
- Constitutional and legal lack of definition of the right to property. Supplementary nature of the Civil Code. The expropriation procedure is considered to be civil, when due to the object and the acting subject, it should be conceived with an administrative contentious nature. Amparo regulated in the Civil Procedure Law Administrative and Labor has as limits that protects only in possession the owner.
Criminal proceedings
The Constitution establishes in its article 58 the freedom and inviolability of the person. No one can be detained except in the cases, in the manner and with the guarantees prescribed by law.
Habeas corpus: Protects personal liberty, provided for in the Criminal Procedure Law, and aired in criminal courts. This law expresses in its article 467 that any person who is deprived of liberty, outside the cases or without the formalities and guarantees provided by the Constitution and the laws, must be released, at his or any other person's request, through a very summary habeas corpus process. There is no recourse against the order declaring the habeas corpus admissible, in the event that it is denied, an appeal is brought before the respective chamber of the Supreme People's Court.
Protection of individual rights: The Penal Code (Law 62/87) gives criminal protection to the rights of the individual court, by classifying as criminal conduct and therefore punishable any action aimed at restricting them.
Title IX called Crimes against Individual Rights, regulates a series of criminal behaviors that threaten some of the rights included in Chapter VII of the Constitution; for example, crimes against personal freedom (article 279-286); violation of domicile and illegal registration (articles 287-288); violation and disclosure of the secrecy of correspondence (article 289-290); crimes against the free emission of thought (article 291); crimes against the rights of assembly, demonstration, association, complaint and petition (article 292); crimes against property rights (article 293); crimes against freedom of religion (article 294); crimes against the right to equality (article 295).Title X (articles 296-297) regulates crimes against labor rights and XIII crimes against patrimonial rights. They also receive criminal protection, rights that are not within Chapter VII of the Constitution, for example Title XI regulates crimes against the normal development of sexual relations and against the family, children and youth (articles 298-316).
It is significant that the Penal Code protects some rights that are not expressly recognized in the Constitution, such is the case of crimes against life and crimes against honor.
As a partial conclusion to the above, we can affirm that criminal protection is fundamentally aimed at civil and political rights and only a few economic, social and cultural rights. In practice, this route presents several drawbacks, since many times the processes take longer than established, the victims being in a defenseless state and, as two prestigious professors of the Universidad de Oriente affirm when the sentence is obtained, the offense.
Limitations:
- Criminal protection is fundamentally aimed at civil and political rights and only a few economic, social and cultural rights. The processes take longer than established, the victims being in a defenseless state and as stated: "When the condemnation, the offense is socially forgotten ”.
Labor procedures
The labor procedure constitutes the most appropriate way to allege violations of rights in the framework of labor legal relations and ensure that they are duly supervised.
The Cuban Constitution expressly recognizes the right to work (article 45), to rest (article 46), to protection, safety and hygiene at work, to the subsidy or retirement in cases of temporary or permanent incapacity for work (article 49), to medical care (article 50) and to job training and the right to unionize as a result of the right of assembly, association and demonstration of workers (article 54). Paradoxically, the right to wages is not exhaustively regulated in the constitutional text, however the text establishes the form of their remuneration as a material guarantee of that right. It is recognized that not all labor rights are regulated in the constitutional text, but that its regulatory development and even definition,it appears in other texts of the legal system, especially in the Labor Code.
Decree-Law No. 176 Basic Labor Justice System and Joint Resolution No. 1 of the Ministry of Labor and Social Security and the Supreme People's Court are the norms that allow workers to file proceedings before the Basic Labor Justice Organ and then before the competent court in case their rights are violated. In the case of leading cadres and officials, they are governed by Decree Law 251/07.
It is true that labor procedures are based on the principles of simplicity, speed and orality, which are advantages over others, however, among the limitations that this type of guarantee presents is the very simplification of the use of judicial channels, which occurred when creating the Base Labor Justice Bodies; because by resolving conflicts between workers, and between them and the employing entity, they become the final instance with respect to conflicts arising from the application of measures that do not modify or do so for a certain time the status of the worker,and the action of the courts is reduced to those claims that are established against the decisions of the Basic Labor Justice Bodies that imply a definitive variation of the worker's labor situation and in terms of labor rights; being significant the fact that against what the Popular Municipal Courts decide there is no recourse.
The only recourse, if it can be called that, that would be left to the worker is the Review procedure. This procedure can only be established when facts are known that were not reported before; new evidence appears; or it is conclusively demonstrated that one or more of the following deficiencies are present in the commission's response: inadmissibility, illegality, arbitrariness and notorious injustice.
Limitations in relation to the labor sphere from a guarantee perspective:
- Lack of systematics in the constitutional regulation of labor rights. Diversity of special labor regimes that entails the existence of various forms of conflict resolution. Multiple and differentiated complaint routes that combine administrative and special procedures with others of a judicial nature. There is no possibility of access to the judicial channel for the defense of all labor rights, especially if it is taken into account that the OJLB are not judicial bodies.The claim before the OJLB does not suspend the execution of the sanction that is claimed.Impossibility of legal defense before OJLB.
Administrative Procedure
Article 26 of the Constitution itself establishes that any person who suffers damage or injury unduly caused by officials or agents of the State, has the right to claim and obtain reparation or compensation. Through the contentious-administrative process (article 656 LPCALE), all the claims that may be deduced against the general provisions and the resolutions that emanate may be challenged before the Civil and Administrative Chamber of the Popular Provincial Courts and the Supreme People's Court. of the administration and that violate legally established rights in favor of the claimant and issues related to the application of the legislation of the Urban Reform, except as provided in articles 657 and 673. In this article 657 subsection 4 refers:The questions that arise in relation to the provisions emanating from a competent authority regarding: constitutional, civil, criminal, labor and social security matters do not correspond to the administrative jurisdiction.
The administrative procedure is the one that offers the most possibilities to protect constitutional rights, since it can encompass any right, provided that the injury comes from the public administration, or its agents and the owner is an administrator, however, the limitation of article 657, it is prevented, restricting the protective scope of this route, by posing in such a general and comprehensive way the term constitutional matters, which includes all the claims on rights recognized in the text and entering into contradiction with article 656, which is the one that authorizes the administrative jurisdiction to know all the claims that are deduced against the general provisions and the resolutions that emanate from the administration and that violate legally established rights in favor of the claimant,it would be possible to ask then what rights are those that can be claimed by this route, if the constitutional ones, considered of higher hierarchy cannot be claimed.
Limitations:
- The Administrative Silence is conceived in its negative character, Lack of a common procedure of claim in administrative matters, Impossibility of access to the judicial route, as a general rule.
Protection of citizens' rights
Article 63 of the constitutional text establishes the right of every citizen to address complaints and petitions to the authorities and to receive the pertinent attention or responses, by virtue of the foregoing, the law of the Attorney General of the Republic, attributes to the prosecutor, among other functions, the responsibility to attend to the complaints and claims that citizens present about alleged violations of their rights and to order, by resolution, the full restoration of legality.
According to the Regulation of the Law of the Prosecutor's Office approved and put into effect by agreement of the Council of State, of November 30, 1998, in its article 21 establishes that the Directorate for the Protection of Citizen Rights has, among other functions, to control the restoration of legality in the face of violations of constitutional rights and legally established guarantees; Evaluate and carry out studies of the main causes that give rise to complaints from the population, as well as from the entities that most frequently incur them, proposing the necessary measures.
According to figures collected from the Department for the Protection of Citizen Rights, 82,417 citizens were treated in 2008, and 12,000 complaints were processed.
Once the prosecutor receives the complaint or claim, he has sixty days to investigate the facts, once this term has elapsed and in the event that he does not detect any violation, he must provide the claimant with a legally founded response. In the event that it is proven that a violation existed, it issues a resolution to reestablish the broken legality; This resolution is mandatory for the body, authority or official to whom it is addressed; they have twenty days to inform the Prosecutor about the measures adopted; in the event of non-compliance, the Prosecutor informs the hierarchical superior of the offender; the one who is obliged to enforce the resolution in twenty days. However, it is valid to clarify that such decisions have no binding force,since the Office of the Prosecutor is not a power body and its decisions cannot revoke or suspend acts emanating from state or administrative authorities, since this power corresponds to the power and government bodies, according to the Constitution itself. The prosecutor can also request the application of measures to the hierarchical superior of the offender or exercise criminal action in case the injury is a crime.
On some occasions, the decisions of the Prosecutor are questioned, since as the Prosecutor's Office is not a jurisdictional body, these are not comparable to judicial sentences, as they cannot decide on a matter in litigation, nor administer justice. The courts are the only bodies in charge of applying the law to a case submitted to its consideration, as well as ordering the restitution of the owner in full enjoyment of his legitimate rights and interests.
It is valid to highlight the work that the Office of the Prosecutor has carried out in the protection of citizens' rights, which makes it an institution of great prestige and trust on the part of society.
The decisions of the prosecutor do have authority since they come from the highest fiscal management body in the country, but the Prosecutor's Law itself limits them by establishing in its article 21 that these cannot interfere in the sphere of exclusive powers of the organs and agencies of the State.
The procedural guarantees subsystem has several deficiencies, as it is made up of procedures of a different nature, ventilated in different instances, with different terms, which lead to them becoming slow, complex and expensive, which leads to the idea of the need to improve them., so that they can fulfill the important function of defending human rights and the constitutional text. On the other hand, the control carried out by the Prosecutor's Office, as we saw previously, is insufficient.
As a final conclusion we can affirm that the system of constitutional guarantees that currently exists in Cuba is not enough; as it could be seen from the analyzes made during this investigation.
This does not mean that constitutional mandates are not protected in Cuba, to affirm this would be to side with the enemies of the Cuban Revolution, however, it is necessary to be aware of the deficiencies and value possible solutions.
It is up to the jurists to analyze the proposals that provide the system of constitutional guarantees with mechanisms that make it possible to better defend revolutionary conquests.
The first step would be to update the catalog of rights included in the Constitution, incorporating third-generation appeals, which in recent years in some countries have become true social gains. Among these are the right to privacy, the right to honor, the right to information, to self-image, to the development of personality, computer rights and freedom of movement.
Regarding legal protection, it is necessary to save the legal reserves for articles that do not have it. Here comes a courageous proposal made by the eternal professor Julio Fernández Bulté on the need for a legislative plan for the National Assembly of People's Power. According to his words, this legislative plan would take into account: "(…) above any other provision, those complementary to the Constitution, (…) that must be enacted giving continuity to the constitutional order and ensuring its legal supremacy".
Procedural guarantees are the ones that present the most difficulties, it is necessary to improve them, since a safer and faster way is needed to carry out the defense of rights. The cause is logical; If there are rights that are not duly constitutionalized or protected by ordinary law, it goes without saying that they do not have a procedure either. On top, several of those who have it have the difficulties already mentioned in previous sections.
It is necessary to modify article 657 of the Civil, Administrative and Labor Procedure Law, and thus include constitutional matters as matters to be dealt with in contentious administrative processes; even analyze the acceptance of the rest of the excluded subjects.
Regarding labor procedures; The Basic Labor Justice Bodies constitute the final instance in conflicts arising from the application of measures that do not modify, or do so for a certain period of time, the worker's employment situation, and although it is true that their actions are meritorious, and are made up of workers with good attitudes, elected by assembly; It must be borne in mind that they are non-professional bodies, and it is important that the process is completed in the judicial instance, where legal professionals, specialized in the matter, participate, seeking the most adjusted solution from the legal point of view; restore to the provincial instance the power to hear on appeal the appeals against the sentences of the Municipal Courts,This would provide the Labor Justice System with greater guarantees, thus preventing one of the parties from being left in a defenseless state, while the process would be known by specialists with higher qualifications, with more experience and who have more time to the practice of tests.
Furthermore, in accordance with the principles established in the doctrine that there are greater guarantees for the imposition of more serious measures, in the event that the measure applied is the definitive separation of the sector, the impossibility of resorting to the judicial route should be eliminated. As for the review procedure, as long as other mechanisms are created to complain in case of disagreement, it can recover its nature as an exceptional procedure.
On the other hand, the need for a Labor Procedure Law, which brings together everything regulated in Decree Law 176, Joint Resolution No. 1 of 1997, as well as all forms of proceeding before the courts, is becoming increasingly evident., bearing in mind that the Civil, Administrative, Labor and Economic Procedure law dates from 1977, and since then transformations have been taking place in the labor justice system, which need to be deposited in the same legal body.
Among the disadvantages of controlling constitutionality in Cuba are that the ANPP becomes a judge of what it is part of, so it becomes political control; control that is also injured because the Prosecutor's Office, the body in charge of the control and preservation of legality, only intervenes when citizens come to present complaints and claims, so there is no specific procedure for the declaration of unconstitutionality.
Considering that the proposed objective is fulfilled, the following are the conclusions listed for a better understanding:
1. Legal systems have recognized, through constitutional history, a set of guarantees that make it possible to defend constitutional mandates, of which multiple classifications have been given.
Legal guarantees include, from the recognition of first, second and third generation human rights, the adoption of development laws, which regulate the contents of each right, to the inclusion, within the state machinery of institutions before which claims for non-compliance with the Constitution and the creation of legal procedures for the protection of constitutional rights can be presented.
2. The system of legal guarantees in force in Cuba, since the promulgation of the 1976 Socialist Constitution, presents limitations and insufficiencies, among others, the following can be mentioned:
- There is no express regulation of constitutional guarantees or third-generation rights in the constitutional text. The legal protection of constitutional rights is incomplete, as there are legal reserves that have not been saved. The jurisdictional route is made up of various procedures. legal that protect rights, which in many occasions become slow and expensive.
In addition, there is no specific judicial procedure that provides protection for human rights, since the administrative procedure, which is the one with the most possibilities in this regard, is limited by not being allowed to know about constitutional issues.
- The Office of the Prosecutor presents favorable results in dealing with claims for alleged human rights violations, but its performance is not sufficient. The four classifications addressed in the investigation, without distinction, require updating and possible modifications.
3. Cuban doctrine has addressed possible solutions to the problems posed.
4. The solutions addressed are in correspondence with the aforementioned difficulties. They are, due to the length of the subject, only beginnings of what could be more specific investigations. For example, the creation of a constitutional judicial procedure or the legal protection of some rights.
For these reasons, the Supreme Court should be granted the function of ensuring the supremacy of constitutional norms and principles, which it would do through a Special chamber, called the Constitutional Chamber, which will have purely constitutional jurisdiction and its decisions and interpretations would have binding effects. for the other rooms of this court, as well as for the other organs of the State, excluding the National Assembly of People's Power.
This exclusion is based on the fact that, in addition to being the supreme organ of the Cuban State, which should not have subordination to any other, it is an organ that has prior control of constitutionality exercised by the Committee on Constitutional and Legal Affairs.
Among the powers of this Chamber would be:
- Resolve constitutional conflicts between laws, statutory decrees and other general provisions and declare the total or partial nullity of regulatory acts that contravene the provisions of the Constitution. Resolve unconstitutionality appeals filed by the affected party, without the need for it to exist a specific number of people who request it.
The Faculty to promote action for constitutional issues would be in the hands of the deputies, the Organisms of the Central State Administration, the social and mass organizations, collectively and also the citizens.
The creation of this Chamber could be done in accordance with the prevailing ideas about the structure of the State, bearing in mind that the defense of the constitutional contents is at the same time the defense of the conquests and revolutionary principles.
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