Summary
The human being as a social being, in their relationships, executes acts from which damage or harm to others can be derived, which can be the product of a reckless or intentional action and sometimes in an involuntary and unpredictable way. From these acts that are defined as illegal, civil liability is derived, which obliges the party who causes it to compensate the injured party for the damage caused; It is noteworthy to note that if this offense appears regulated as a crime in the Criminal Law, it transcends the limits of civil liability only, since it originates the so-called ex-crime civil liability or as it is generally known, civil liability derived from a crime.
This civil liability derived from the crime has a double dimension, which makes it indisputably a controversial issue; doctrinally, the points under discussion find different answers based on where they come from: Criminal Law or Civil Law, which instead of being something advantageous or enriching for the debate, has fragmented it, thus avoiding its integral development.
Controversy that extends to aspects as peaceful for other institutions as the emergence and subsequent historical development; controversies that are maintained to date without diminishing the importance of the above, the most controversial and current extreme that arises is the determination of the legal nature of the civil liability derived from the crime; It is not only discussed whether its legal nature is civil or criminal, but there are divergences within each current.
The civil responsibility derived from the crime is regulated in the different legislations and from an exegetical, analytical analysis of these texts, the indisputable existence of gaps, as well as an inadequate application of precepts, is demonstrated; situation that needs a prompt solution.
All this brings with it difficulties both in the legislative and practical order, originated in the first place by the lack of both laws of certain specific concepts of this institution, thereby creating legislative voids due to the aforementioned legislative remission that at certain times generates a normative overlap of very difficult solution, because if one goes to the three principles to take into account in the conflicts of possible coalition of norm due to the characteristics of this institution, they become inapplicable, and finally the difficulties extend to the practical field, because by having these Legislative problems entail that legal operators interpret it in a different way or in some cases in a wrong way.
The above leads me to pose as a scientific problem.
The legislative diversity of the Civil Liability derived from the crime generates problems in its execution.
For which we formulate the following hypothesis:
If there were legislative unity in the regulation of Civil Liability, it would allow better enforcement in Cuba.
To answer the problem, I formulated the following General Objective:
Argue the need to unify the regulations governing civil liability derived from crime, based on a diagnosis of the main problems in its execution.
Specific goal:
Assess the different forms of civil liability derived from crime in Cuba in order to determine its difficulties both at the legislative level and in its practical application to make proposals for the purposes of its improvement.
The subject investigated is not only extremely controversial as I have already mentioned, but it is current, since it is a problem that has not yet been resolved, both in doctrine and in the legislative order; and it is novel because although previous studies have been carried out in Cuba, its authors have not discussed the issue of its legal nature; Well, they already start by locating it in Civil Law or Criminal Law, an aspect that I intend to answer in this work and also analyzes institutions that have not been treated previously; With this, my evaluations may serve as a starting point for future modifications that are so necessary in this institution.
I consider the study of the topic addressed very useful, in the sense of unifying doctrinal criteria that have a strong impact on the application of this institution by our legal operators, especially judges, who have the social and ethical responsibility of adapting more and more our right to the universal values of justice and equity.
Civil liability derived from the crime
"Legal responsibility consists of the duty, legally established, to assume the corresponding consequences for the performance of an unlawful act (contrary to law).". Therefore, taking into consideration the area or sector of the legal system that is violated by the actions of a natural or legal person, there are different types of legal liability, namely: labor, administrative, criminal, and civil liability. These last two will occupy the center of our attention from now on.
The classification of the types of responsibility is a doctrinal question to delimit the presence of one type of another, without using terms of free will or interchangeably. Some legal writers classify responsibility as moral, criminal and civil.
Unlike moral responsibility, legal (criminal and civil) does not exist without action, abstention and without prejudice; when the latter reaches society, its author can be punished with a penalty and there is then criminal responsibility; in principle, this institution requires the moral of the agent. When the principle affects a private person then there is a civil one, it is so, since responsibility constitutes a reparation, not a sanction.
Regarding the civil liability arising from the crime, in a general sense, compensation can be claimed for the damages that a crime has caused within the criminal process known to it. In this case, civil liability comes from an illegal act but of a criminal nature, that is, a crime; in which the fundamental feature is its typicity, unlike the atypicality of the civil wrongful act, which is known in the doctrine as a civil crime. That is to say, those acts that are regulated as a crime in criminal law can be punished with a penalty, which responds to the well-known principle of legality. So in the criminal process,Civil liability can be defined as the obligation of the perpetrator of a crime or failure to financially repair the damages caused or derived from its infringement.
It is a general doctrine that every person criminally liable for a crime, will also be civilly responsible, in the sense that the crime is a source of civil obligations as an illegal act and inasmuch as the existence of damages, originated through of the causal relationship between the action and its effect, in such a way that the crime does not produce said civil liability when there is a break in the causal link.
Therefore, for civil liability to be considered, it is necessary that the criminal offense has produced a result of dispossession of a thing that had to be restored, the cause of damage that must be repaired or the derivation of damages that should be compensated.
Due to similar limitations, neither can it be argued that every civil person responsible for a crime is equally and previously criminally responsible, since all subsidiary civil responsibilities do not presuppose criminal charges.
Likewise, civil liability is transferable to the heirs, which shows that, contrary to criminal liability, it lacks the exclusively personal and indeclinable nature of the latter, being therefore susceptible to resignation and remission, which except in few exceptions does not occur in the criminal responsibility, in which the victim ceases to be an essential part of the process, to cede the leading role to the accused and society, from which it is inferred that both responsibilities have a different legal nature, to the point of justifying the differentiation of processes adjusted to the respective actions.
There is a need not to leave the victim in distress, enabling her to make her rights effective through criminal procedures faster and more efficient than ordinary civil procedures.
The consideration of civil action, together with the criminal one, as arising from the same act, despite its diverse nature, is typical of modern law, which promoted the simultaneous exercise of those, on the basis that the crime causes two damages: one direct and primary on the injured person or entity, and another indirect and secondary on the social community, having the civil responsibility to cover the first and the criminal to satisfy the second.
In reality, the exercise of civil action in the criminal sphere has a privileged nature, compared to the purely civil action arising from the breach of obligations not sanctioned in said sphere, as it is clear that its filing, protection and defense is the responsibility of the Public Prosecutor's Office, generally, the preference of such responsibility over the other pecuniary ones, the solidarity between the partners in the criminal offense, the possibility of extending it automatically or subsidiarily over people outside the criminal responsibility.
We consider the civil liability derived from the crime as the obligation of every active subject of law to financially satisfy, by himself or by another person, the personal or social legal assets that he has injured as a result of the violation of the criminal legal order.
The civil responsibility derived from the crime. Its legal nature
The eminent Spanish criminal Luis Jiménez de Asúa, defined civil responsibility in general terms, pointing out its Latin root derived from the verb respond, which means to correspond, as a consequence of the material causality of the result, of the injustice, of the act of reproach of the guilt and the possibility of the action typically described in the light, the guilt constituting the concrete attribution of responsibility to the author of the fact that originates it.
Criminal responsibility or criminal responsibility, has a particular significance, because it, regardless of the particular or general subject to whom it falls, affects the main social relations and assets legally protected by the State and that it itself considered fundamental for the purposes of coexistence and maintenance of social balance; In this sense, the perpetrator of the crime enters into a direct relationship with the State, which is in charge of prosecuting ex officio and without requirement, necessarily from the victim to the alleged offender, who has committed damage or is about to commit it and that affects the community. The degree of responsibility contracted by the one who intervenes in the commission of a crime is determined by their more or less accentuated participation in the commission of the same,this participation determining the condition of author or accomplice that is punished in different ways, according to the particularities of each legislation.
Civil liability, on the other hand, assumes different modalities without losing its civil status, depending on the source from which it originates, this can be derived from the law according to the legislative provision that forces you to do or not do, to give something, there is even laws that accept the responsibility derived from the admission of the unilateral will that can originate obligations and consequently responsibilities, and even today there is talk of objective fault that does not come only from a negligent conduct of the person responsible, but from the fact of having a property that may cause harm.
As can be seen, there is a notable difference between criminal liability and civil liability, of course the former implies greater severity, is highly personal and has different purposes and certain consequences.
But the truth is, that the crime derives effects of a civil nature, that is, that criminal responsibility poses a double aspect, which forces the commissioner found guilty of breaking the rules of the criminal law to assume, in addition and at the same time, the consequences civil penalties, which is associated by its own nature, because the subject, in addition to affecting the good or the legal interest protected by criminal law, also causes damage to personal heritage or moral integrity, so that, regardless of the response that has for the crime, it must answer for other consequences that is the doctrine are called civil liability derived from the crime, although some authors believe that this is not an authentic civil liability.
There are various doctrines formulated about the legal nature of this institution, which have led to support different criteria in this regard. For Merkel, the obligation to compensate for the damages of the crime, restitution and direct coercion to restore a certain state of affairs that responds to certain legal duties, serve the same purpose as penalties.
For Cobo del Rosal, the civil liability derived from the crime is not a proper institution of Criminal Law, although he believes that it can be considered as a more or less direct consequence of the crime. It considers its nature to be civil. "And if the Penal Code mentions and regulates them in part, it is for purely pragmatic reasons."
The Spanish Civil Code determines that the obligations arise from the law, from contracts and quasi-contracts and from illegal acts and omissions or involving any kind of fault or negligence, and that civil obligations arising from crimes or misdemeanors will be governed by the provisions of the Penal Code; In other words, it recognizes the institution of a civil nature, as it is regulated in this way in the Civil Code, and it is clearly manifested in the very regulation that the Penal Code carries out, which provides that the obligation to restore, repair the damage and compensate the damages are transmitted to the heirs of the person responsible and that "civil liability arising from a crime or misdemeanor will be extinguished in the same way as other obligations, subject to the rules of Civil Law." It is, therefore,for him of a civil consequence arising from the crime, since the damage caused by it originates the corresponding responsibility.
As we have seen, when it comes to determining the nature of this responsibility, antagonistic criteria begin to emerge, which lead to group the writers of the matter into two fundamental aspects.
One aspect has been as to whether the nature of this responsibility is public or private.
This aspect does not offer any dilemma for us, since we have stated that it is the State and not the injured party that is responsible for their demand, in addition to considering the inalienability of this right, by the injured party, to be compensated for the damages caused; Therefore, we can ensure that the nature of the civil liability arising from the crime is undoubtedly public.
And the other aspect, in which it is debated whether the civil liability arising from the crime is criminal or civil.
For us, this does not lead us to any doubt, given that it is a damage caused by a crime within the criminal process, in which the fundamental feature is its typicity, which responds to the principle of legality, by virtue of which Only those acts that are regulated as a crime in criminal law can be punished with a penalty. So, we consider that the criminal offense is where it flows from, where the civil liability derived from the crime is born, it is its principle, its foundation, because if the aforementioned crime does not exist, there will be no civil liability derived from it; So we assume that civil liability whenever it derives from the crime has its nature in Criminal Law.
The civil responsibility derived from the crime. His history in Cuba
During the colony in Cuba, the Spanish Penal Code of 1870 governed through the Royal Decree of May 23, 1879, which regulated the determination of civil responsibility within the criminal process, this principle laid the foundations for when the Defense Code was promulgated In 1936, it was decided to continue offering the same treatment to said institution, it only established a new modality to make it effective, it was the well-known Reparations Fund, which constituted an intermediary body between the victim and his perpetrator, which will later be analyzed in our work.
The Social Defense Code shows how the institution of civil liability has a private nature, that is, civil, by stating that it is extinguished in the same way as the obligations in the Civil Code.
With the modifications that take place in our country after 1959, it is necessary to temper the current legislation, in this sense, several modifications are made to the Social Defense Code until February 15, 1970, when Law 21 begins to govern, which was the new Penal Code, this Law in its article 70 embodied the principle that “… the criminally liable is also civilly liable for the damages and losses caused by the crime. The court hearing the crime declares the civil liabilities and their extent… ”.
Another modification made by the Criminal Code of 1979 that we consider very unfortunate was the one related to eliminating financial compensation for moral damage, considering that it is only repaired by the recognition of the offspring and the public satisfaction of the offended. Taking into account that said Penal Code regulated the entire content and scope of civil liability derived from the crime, it is understood that during this period it was criminal in nature.
The civil responsibility derived from the crime. Its current regulation
Economic changes lead the social superstructure to adjust to them, reasons for which on April 30, 1988 Law No. 62 came into force, which constitutes the Penal Code in force in Cuba, which dedicates its Tenth Title to “ the declaration and execution of the civil obligations derived from the crime ”.
Our criminal law starts from the principle that the criminally liable is also civilly liable for damages caused by the crime, deciding that the Court that hears the crime sets the civil liability and its extension, being here where our Code made a new modification to the refer the judge to apply the norms corresponding to the civil legislation regarding this institution; that is to say, the current Civil Code, which in its Chapter IV dedicated to Illegal Acts, in its Second Section regulates the responsibility derived from them, exposing the aspects that it comprises and provides how it should be required; Likewise, it sets out the civil liability incurred by natural and legal persons for damages caused or caused by persons for whom they must respond.
In compliance with the provisions of the substantive civil and criminal legislation regarding this institution, our Criminal Procedure Law establishes that the action to claim civil liability arising from the crime is exercised together with the criminal, in article 275 of said Law and establishes the reserve so that the right to be compensated for a damage caused and that its total cure could not be delimited during the criminal process is litigated by civil means.
It is stated that the extinction of criminal responsibility does not entail the extinction of civil liability and its holder may exercise it by the means and manner that proceeds except that the final judgment establishes that there was no criminal act from which the claim could be derived. civil liability.
Law No. 83, approved in Cuba and which came into force in January 1998, established in its General Provisions, that according to the Constitution, the Attorney General's Office is the State body to which, as fundamental objectives, the control and preservation of legality, based on the monitoring of strict compliance with the Constitution, laws and other legal provisions, by State agencies, economic and social entities and by citizens and the promotion and exercise of public criminal action on behalf of the State.
That is to say, it is the Prosecutor's Office, the body that in the criminal process performs an essentially demanding function, which is fundamentally in the promotion and exercise of criminal action, plus, our conception of the prosecutor obliges that it in cases in which the crime involves a violation of a legally protected property and this violation entails as a consequence the protection of two classes of interests that must be protected: the social interest for the repression of the crime and an interest of the individual to be compensated for the damages arising from criminal conduct, must equally represent that particular interest and exercise what has been called the exercise of civil action arising from the crime.
As previously stated, the Criminal Procedure Law establishes that the action to request civil liability arising from the crime is exercised together with the criminal one, pointing out as an exception that in crimes committed against bodily integrity and as a result of this there is an injured party who had not healed, at the time the prosecutor exercises the action, the process must continue until the sentence is issued, where no pronouncement will be made on civil liability and the corresponding authority will instruct the injured party so that at the appropriate procedural moment he can exercise the corresponding action before the Civil Court, notwithstanding this dual aspect of the exercise of criminal and civil action jointly, has a legal basis in the Criminal Procedure Law, but is not regulated in the same way,in the Law of the Prosecutor's Office.
This Law confers on the prosecutor as a fundamental task the exercise of criminal action, which relegates to the background the work of defense required by the one who was a victim of the crime and suffers the damage that the criminal action produced in him.
As we can see, even though there are essential differences between criminal responsibility and civil responsibility, on some occasions compensation can be claimed for the damages that a crime has caused within the criminal process known to it. In this case, civil liability comes from an unlawful act but of a criminal nature, that is, from a crime, understood as any socially dangerous action or omission prohibited by law under a criminal penalty.
The legal nature of civil liability in Cuba from a legislative reflection
The current Penal Code establishes in its article 70 paragraph 1 that the person criminally liable is also civilly liable for the damages caused by the crime. The Court hearing the crime is empowered to declare civil liability in accordance with common law.
As there is a dual nature of harmful facts that are reputed crimes and at the same time civil crimes, the procedural question to which this will give rise arises, through two systems for the exercise of civil action in these crime cases:
- Cumulative or joint exercise system: both actions are exercised in the same criminal process. The victim can be a third party or the victim of the crime. Successive system: it manifests itself when due to certain circumstances specifically established in each procedural law, it is not possible to establish the two actions in the same process. The criminal action is exercised in the corresponding criminal process and prior to the exercise of the civil action in a subsequent process.
To ensure the execution of the sentence regarding civil liability, the Law of Procedure stipulates that the Instructor, the Prosecutor and the Court, as subjects that intervene in the procedural legal relationship, can order precautionary measures of bail, embargo and deposits assets of the accused.
It is important to emphasize that this exercise of criminal action together with the civil one is possible, since the Courts are competent for its admission, since it can be extended to the sole effect of the repression of civil matters closely related to the fact of in question.
For its part, the Court, when drafting the sentence, is obliged to include in the narrative of facts the issues that it declares as proven in relation to the civil liability incurred by the accused; in the fourth Considering, it will expose the legal foundations of the aforementioned civil liability; and consequently it will pronounce it in the operative part of the sentence; This obligation must not only be fulfilled in ordinary proceedings, but also in quasi-ordinary and summary proceedings that are resolved in municipal courts, in obedience to what is established in this regard by the adjective law.
The treatment given by the Penal Code to the institution of the extinction of civil liability is also significant, since it states that in the case of the death of a subject prosecuted in a criminal case, the criminal responsibility is extinguished, but not civil liability, unless he dies in a state of insolvency; so that the victim would be forced in such a case to go to civil proceedings, with its usual complications, and this in turn means that in such a case the civil action is independent of the criminal action.
The Penal Code provides consequences for those who fail to comply with civil liability, determining that:
- Their salary, salary or any other economic income will be seized in the amount established by law. Obligation to complete the official letter, taking the measures so that the amounts indicated are periodically and regularly deducted and send them to the aforementioned Fund, within a term not exceeding 5 business days from the withholding. goods and rights of the civilly responsible except those expressly excluded by civil procedural legislation.
As can be seen, civil liability arising from crime is an institution that is regulated in two legal bodies, in the Penal Code and in the Civil Code, which, although different, cannot be separated from each other, in order to seek redress. to the victim of the damages caused by the crime.
Fundamentally, the Cuban Penal Code is declarative of the requirement to know in a single process the consequences derived and demanded by reason of criminal responsibility and civil responsibility, however all the content and scope of the latter is optional of the legislation civil that regulates the main foundations of this institution.
Based on what has been analyzed, the Cuban authors consider that at present the institution of civil liability derived from the crime is an obligation of a civil nature, arguing that the main foundations of this are included in the civil legislation, therefore, although it is the criminal judge who resolves everything concerning said institution when it is jointly interested in criminal responsibility, is obliged to abide by what the civil legislation regulates on the matter.
We understand that even when civil liability derived from crime in Cuba is regulated in the Civil Code, its legal nature is of a criminal nature, since it has its origin, its essence in the criminal offense; if it does not come from it, we are not in the presence of that institution.
Forms of civil liability derived from the crime today. Difficulties in the Law and in its practical application. Proposals for its improvement.
Law No. 62 or Penal Code, in force since February 1988, which was subject to modification, which entered into force on August 25, 1997, through Decree Law No. 175 of this year, establishes the principle that the subject who is declared criminally liable will also be civilly liable for damages caused by the crime and determines that the court that hears the criminal act declares civil liability; However, the current Penal Code does not determine its content, referring to the norms established in the Civil Code in Title IV, Chapter IV: Unlawful Acts, where it defines that: whoever unlawfully causes damage or harm to another is obliged to compensate him.
The compensation for civil liability includes:
- Restitution of property Reparation of pecuniary damage Compensation for damage Reparation of non-material damage
We consider it necessary to refer first to the concept of compensation referred to in the law. Understanding as a function of this the establishment of the assets of the injured person or property, it returns to have value, understand the estate. For its part, compensation can be produced through different forms, such as the specific reintegration of the asset, the equivalent of it in money, in some cases a life annuity, until the age of majority and can even be permanent in the cases of permanent incapacity for work or decrease in purchasing power as a consequence of the incapacity produced by the criminal illegal act.
The restitution of the good
According to the provisions of the legislation, this form of compensation is applicable when the property that is the object of the crime has previously been occupied, or found during the development of the process and it is delivered to the injured party, also extending it in the necessary cases to demand a adequate amount of money according to the corresponding rates, to pay the owner for the deterioration or impairment that the property may have suffered as a result of the action, that is, this restitution is not purely the delivery of the object, but we could say that it also It carries with it in certain cases a material compensation, when the property subject to restitution has suffered some damage.
From the foregoing, we can see that in the matter of restitution of the property, the Court itself is in charge of the execution, by making the return to the injured party or victim effective, an aspect that we consider to be correct, since during the investigation of the facts, the goods, which are the product of the commission of the crime, which in turn can serve as pieces of evidence, which during the oral trial phase are at the disposal of the Court and this provides the victim with the corresponding compensation in this regard.
As for the impairment suffered by the good, which according to our civil legislation, its value must be paid; In our practice, we have observed that this is not assessed, nor is it paid to the victim or injured party; Nor is compensation included in the law for what is known in the doctrine as lost profits, because in this case we would be facing a loss or wrong derived from the crime, of which the victim must be satisfied; inasmuch as it has not only suffered a decrease in the equity values that it had to its credit, that is, the actual damage suffered, but the forecast that must be made of future effects of present damage.
In relation to what the Penal Code establishes, that the Court adopts the necessary measures so that the property is vacated and returned to the corresponding body in the cases provided for in articles 231,232,333 that correspond to the crimes of illegal occupation and disposition of buildings or local, the first two articles, and usurpation, the third; form of execution of the civil responsibility derived from the crime that is not regulated in the civil legislation, without there being, in addition, the suitable mechanisms to execute it; and although it is not frequent that this form of civil liability is provided, the truth is that it generates a lack of cohesion between both legal systems, because if one is used to complete the other,In our view, there must be such a link between them that it does not give rise to gaps or omissions.
The civil legislation, regarding restitution, provides that it cannot be carried out in cases in which the property has been acquired by a third party in good faith, in centers intended for commercialization or by a public auction, in correspondence with the civil principle that all property acquired in such circumstances is irreclable; Therefore, in such circumstances, the offender would be required to repair the material damage.
The repair of material damage
For its part, it does not offer any doubt, since it is based on the payment of the value of the good that cannot be delivered to the injured party or the value of the same in compensation for the impairment that has suffered.
Here we present the same legislative and enforcement difficulties in terms of consequential damage and loss of earnings that we referred to in the form of civil liability derived from the crime analyzed above.
It is important in this regard to point out that Law No. 5 or Law of Criminal Procedure in its article 149 established the participation of the injured party in determining the value of the reparation of the material damage caused or the damage caused, because in this case to fix the The value of the property that is the object of the crime or the amount of the damage will be taken into account the saying of the injured party, without excluding the power that the parties and the Court would have to assess what is most in accordance with the Law, and in this regard the Supreme People's Court issued Opinion 353 of 1994, where it states that the amount of pecuniary damage is determined based on the assessment that is admitted as rationally fair, according to the means of admissible evidence in the proceedings, that is, the saying of the injured party, the expert evaluation,the statements of witnesses and the rational judgment that the plaintiff may make in this regard considering our social reality, in accordance with the aforementioned article 149.
Despite the attempts to improve the way of repairing pecuniary damage in our legislation, difficulties persist both in this and in its practical application, which we will explain below.
When it is not possible to repair the damage, placing the damaged heritage in its original state and consequently the compensation is pecuniary, it is necessary to proceed to the valuation of the damage following, in general, according to the Cuban authors, the principle of comprehensive reparation of the attributed damage to the subject; However, given the double monetary circulation, the operators of the Law apply different ways to solve it, taking into account that there is nothing established in this regard; which brings with it different interpretations, which ultimately conspire with the adequate proportionality that must exist between the value of the damages suffered by the victims and what is civilly demanded of the guilty.
Therefore, we understand that the legal precept that regulates this form of civil liability derived from the crime should improve the current formulation, in the sense of including lost profits and the way in which the assets should be valued when the injured party has acquired it in Cuban convertible pesos or in foreign currency.
Compensation for damages
It includes the disbursements to be made by the people harmed by the crime, which may or may not coincide with the victim thereof, which also includes the possible maintenance obligations of the deceased, the payment of money as compensation for the impossibility of continuing to receive the income work obtained by the victim until the time of the crime, in the event that the healing action that does not include hospital medical services and stay in care and rehabilitation centers, due to the concept that in these cases Cuban medicine It is free, but it does include all subsequent disbursements made by the injured party until they are fully cured,as well as the salary corresponding to the days stopped working and any other income that the victim stopped receiving or the expenditure made by the affected person and their family members or a third party, such as, for example, the costs of medicines, funeral expenses and transportation expenses. With respect to the injured, the expenses incurred by the persons referred to in said precept that are essential to achieve their health, all of which must be duly accredited.the expenses incurred by the persons referred to in said precept that are essential to achieve their health, all of which must be duly accredited.the expenses incurred by the persons referred to in said precept that are essential to achieve their health, all of which must be duly accredited.
Reparation of moral damage
Our Code establishes the possibility of repairing the moral damage, but only through the public retraction of the offender, the victim also being able, in the event of an attack on the rights inherent to the personality, demand the immediate cessation of the violation or elimination of its effects.
The fact of giving public satisfaction to the victim is based on the purpose of trying to rehabilitate the damage to the moral integrity of a person and that requires their social rehabilitation, limiting our legislation to expressing that it must be public, but it does not give more details of its execution, which is left to the freedom of the Court according to each case, and its rational vision of the same determine the most effective way to achieve that rehabilitation.
Regarding this form of reparation for non-pecuniary damage, it must be established that our legislation does not include within it what other legislations do, related to the recognition of the offspring and the marriage with the offended, since our current conceptions about the family, the equality of women, the emancipation of women that are supported by the Constitution of the Republic, are based on attitudes towards life and destroy any manifestation of hypocrisy related to the formality of marriage and erase the discriminatory distinction between children born within or outside of marriage, or legitimate and natural children, and brings them all to the same level of equality that favors the harmonious development of society and improves the value system protected by honesty and love in its broadest sense.
Faced with the breach of the obligation to carry out reparation for non-pecuniary damage, the legislator was drastic in its solution and we find then that it is the only case in which it is anticipated that before the execution, the Court will impose "subsidiary prison" establishing that the same It must be fulfilled in a term that cannot be less than three months nor more than six, leaving of course the possibility of its suspension at any time, in which the sanctioned person fulfills the obligation. This provision of the Code in light of the new conceptions on the penalty and the limiting principles to the ius puniendi of the State, presents a certain objection, derived from the necessary observance at any time of the principle of proportionality of the penalty that leads to maintaining, in the most scholars in criminal matters,the conception that subsidiary sanctions for breach of civil obligations should not lead to a prison, since there is no proportional relationship between one and the other. Criterion with which we agree, since it is not a main consequence that leads to the imposition of a penalty, for which it is necessary to assess the proportionality between the criminal act and this, but an accessory consequence, which may very well be financially compensated.for which it is necessary to assess the proportionality between the criminal act and this, but rather an accessory consequence, which may very well be financially compensated.for which it is necessary to assess the proportionality between the criminal act and this, but rather an accessory consequence, which may very well be financially compensated.
In Cuba, there is no theoretical foundation for repairing non-pecuniary damage and in the Civil Code there is no concept of non-pecuniary damage that allows covering all claims that may be filed and there are no rules that regulate comprehensive reparation for this type of damage. damage, making it a scientific problem to solve.
Regarding compensation, the first major difference observed in relation to the rest of the international legislation is the total suppression of forms of "moral reparation" based on compensation in cash, dowry or pension, typical elements of a society where It has a price, even morality.
In our legislation, the Civil Code starts from recognizing that, in the face of the violation of the rights inherent to the personality of the affected party, it can demand the cessation of the violation, the elimination of its effects and the retraction by the offender, and specifically, as content of civil liability, welcomes the public retraction of the offender as a form of reparation.
As we have seen, it is striking that our legal system, on the one hand, gives so much importance to reparation in natura for moral damage, that it even provides for prison for those who do not comply with the obligation to repair it, which is highly debatable., and on the other hand, does not contemplate pecuniary compensation.
Regarding the civil liability insurance, we can see that it has a highly social function, to repair the damage suffered by the victim that the legislator and the interpreter cannot fail to consider, due to its great socioeconomic importance; criterion with which we agree, since with sincerity it must be recognized that until today the victims are the most forgotten and marginalized in the criminal process.
However, if we stop at the role played by the victims in the aforementioned process, we realize that they are the most important informal agents of crime control; the vast majority of police investigations and therefore almost all of the processes begin thanks to the initiative of the victim; It is therefore necessary to find the means to encourage them to report the criminal acts they suffer.
If prevention of criminal activity and antisocial behavior is of great importance for society, so is victim prevention, simply so that criminal victimization does not occur or does not occur, since it is indisputable that the criminal-victim relationship is close and still more, it is indissoluble; Although in themselves they are different phenomena, it is true that they coincide precisely at the moment of the consummation of the punishable act. Not a few authors have called this dynamic "ter criminist" and "iter victim", that is, the path of the criminal and the path of the victim, who although diverse come to find themselves at the crossroads of crime.
It is a great reality that the State punishes the offender and thus seeks to prevent the community against crime based on imprisonment and re-education; what we consider necessary in many cases; But the truth is that it does not take energetic and effective measures aimed at guaranteeing efficient protection on the part of state workers, who are well obliged to protect state enterprises from the criminal attacks that so frequently affect their assets, in the same way it could even typify behaviors that cause serious individual or collective victimization.
The disproportionality existing between the value of the damages suffered by the victims and the civilly demanded of the guilty is also painful, as the competent authorities are guided when assessing the damages for an archaic and absolutely outdated price list and although Decree Law number 151 gives participation to the victim when considering the value of the property dispossessed; in practice, what is provided as compensation for the loss or damage caused is still disproportionate; In any case, all of the above causes a detrimental effect for the victim and conditions the commissioner with a sanction that is sometimes poorly adjusted to the act committed, which undoubtedly diminishes the interest and confidence of the victimized society in the institutions in charge of repressing the crime. crime, to combat the criminal act.
The repair of the material damage caused and the compensation for damages has sui generis characteristics, in our legislation; In the Cuban criminal legal system, both forms of civil liability are executed through the Fund for Compensation ”, attached to the Ministry of Justice of the Republic of Cuba, a body intended to pay the victims or those harmed by the crime, the amount of money that, as a consequence of the damage suffered, is determined in the judgment issued by the competent court.
Our legislator, following the positivist current in the matter, has subtracted the payment of civil responsibility from the will of the offended party to make it the object of a special regulation with the intervention of the State. The precedents of this system are found in the Fines Boxes of the Boards of Trustees of the Ferri Project, in the Fines Box created in Italy by the Law of May 9, 1932, in the National Reparations Fund of the Ortiz Project and in the National Reparations Fund for the Tejera Project.
In our country it was created, in 1936 when the Social Defense Code came into force, as the institution in charge of enforcing civil responsibility and protecting crime victims, being at that time attached to the Secretary of the Ministry of Finance and later by Law 8 209, Decree 1178 of 1953, remaining in the custody of the Ministry of Justice as previously stated.
The Compensation Fund as an institution remains in force to this day, being regulated in the current Criminal Code in its article 71 paragraph 1, where it is considered that it is the entity in charge of enforcing civil liability arising from the damage and compensation for the damage.
In order to fulfill its function, it must demand payment from the obligated parties and pay the victims the amounts set by the Court for civil liability, by means of increasing the funds of the Fund, which also draws on other income such as:
- Discounts in the remuneration for the work of the inmates, to pay the parts not satisfied for the concept of civil liability, the money confiscated as an effect or instrument of the crime, and that which has been ordered to return and is not claimed within the term of one year from the firmness of the judgment Civil liabilities not claimed for being holders within a term of ninety days Surcharges imposed in cases of delay in the payment of civil liability, consisting of an increase of 10 % of the debt The amount of the bonds seized in the judicial processes The discounts to beneficiaries which is 20% Any other income determined by the Law, such as the budget figures provided by the Ministry of Finance.
Issues related to the execution of civil liability derived from the crime involve a certain degree of complexity, with two institutions in charge of these executions, the Court, in cases of restitution of property and reparation of moral damage; and the Compensation Fund for the execution of the reparation of pecuniary damage and compensation for damages, which is characterized by the payment to the victim or injured party and the collection of those who must satisfy all obligations.
It is a reality that society has more hatred against the criminal than pity for the offended, and this reflects the drama of the victim; generally, what is detrimental to it is not internalized by society, including the organs that have to repress the offender. This is a reality and this reflects the drama of the victim; generally what is detrimental to it is not internalized by society, including the organs that have to repress the offender; when the victim is the State, the regret for the damage suffered is even less; and this determines to a large extent that the state companies are potential victims.
This is unfortunately reflected in Article 71 subsection 1 of the Penal Code modified by Decree Law 175, in which it is omitted that the Fund for Reparations is in charge of paying the legal persons who are victims the amounts owed to them; without there being any jurisdictional means or mechanisms for compensation, which is detrimental to the economic and financial situations of such legal entities, this being a scientific problem to be solved.
As we see, the institution of civil liability derived from crime is in need of improvement.
Conclusions
- The civil liability derived from the crime has its nature in Criminal Law, taking into account that it is damage caused by a criminal offense, in which the fundamental feature is its typicity that responds to the principle of legality by virtue of which it can only be those acts that are regulated as a crime in the Penal Law are punished with a penalty; being from him where said institution was born, because if the crime does not exist, there will be no civil liability derived from it. Situation that is the same in Cuba, because even in the legislative order, regardless of the existence of a referral to civil matters, the Criminal Law maintains its supremacy,Due to what has already been indicated from the doctrinal point of view and because there are forms of this type of responsibility that are specifically included in the Penal Code and there is also the possibility in a case of applying the deprivation of liberty that in civil law is totally impossible. Although different insurances are regulated and used in Cuba, including those related to civil liability derived from crime, it has not been a really widely used variant, which could be implemented more extensively and this would guarantee a prompt and effective reparation. the victim.The pronouncements of the highest judicial instance of the country regarding the interpretation or assessment that must be made of controversial aspects of the institution studied are still insufficient,thereby causing serious difficulties in its application by the operators of the Law. In Cuba at present the institution under investigation adopts the forms of: restitution of property, reparation of pecuniary damage, compensation for damage and reparation of moral damage. There are difficulties both in the legislative and in the practical order.
In the legislative order they are:
- The Criminal Law refers to the Civil Law to know and apply the content of said institution. Articles 84 and 85 of the Civil Code do not include compensation for lost profits. Article 70, paragraph 1 of the Penal Code provides a form of enforcement of the civil responsibility derived from the crime that is not included within the Civil Law; without the existence of mechanisms to make it effective. In current legislation there is no concept of non-pecuniary damage, nor does it have norms that regulate comprehensive reparation for this type of damage. Total suppression in the legislation of forms of non-pecuniary reparation based on compensation in cash. Article 70 subsection 2 of the Penal Code provides for imprisonment for anyone who does not comply with the obligation to repair moral damage, this being a contradictory solution.Article 71 subsection 1 of the Penal Code omits that the Fund of Compensation pays legal persons the amounts in money that are owed to them as a result of criminal acts.There is no precept that defines how to enforce the civil liability derived from the crime in the cases in which the good has been acquired by a third party in good faith, in centers intended for commercialization or by a public auction.
In practical order:
- In relation to the civil liability derived from the crime, the impairment suffered by the property is not taken into account, that is, that related to the consequential damage. There are difficulties of application regarding the consequential damage of article 85 of the Civil Code. the damages and losses for their compensation, there are difficulties in their solution, given the double monetary circulation. The real damages suffered by the victims and their families are not valued.
recommendations
First: To the Committee on Legal and Constitutional Affairs of the National Assembly of People's Power:
- That the Criminal Code also regulates the civil liability derived from the crime in order not to create legislative duplication. That the Law include the concepts of lost profits and consequential damage through an authentic contextual interpretation. That through an authentic contextual interpretation It is defined what to understand by impairment and deterioration of the property Add in civil liability a precept that defines moral damage and another that establishes compensation in cash as a form of reparation That the prison be abolished for those who fail to comply with the obligation to repair moral damage. That it be included in article 71, paragraph 1 of the Penal Code that the Fund for Reparations is in charge of paying legal persons the amounts in money that are owed to them as a result of criminal acts.That a provision be included that defines how to enforce the civil liability derived from the crime in cases where the property in question has been acquired in good faith, in centers intended for commercialization or by a public auction. prevalence of civil liability derived from the crime with respect to the payment of fines.
Second: The Governing Council of the Supreme People's Court decides on the type of currency in which the assets are to be valued as compensation; in addition, it establishes the mechanisms that serve to control compliance with the provisions of the Law regarding compensation for damages.
