Introduction
Civil liability rests on an ancient principle of law: whoever causes harm to another incurs the obligation to repair it (1); This principle is found in article 82 of our Civil Code, which says: "He who unlawfully causes damage or injury to another is obliged to compensate him."
Likewise, article 89 states: “Natural persons are obliged to repair the damages that they cause or are caused by the persons for whom they must answer, but the court, at its prudent discretion, if the person responsible is a worker or pensioner without Known own property to fully satisfy the amount of damage or loss, you can adjust the amount of compensation to twenty percent of salary or any other periodic income received, without exceeding a term of ten years. This limitation can be provided whatever the economic content of the liability ”.
This statement is also included in the Penal Code in its article 70: “The criminally liable is also civilly responsible for the damages caused by the crime. The Court that hears the crime declares civil liability and its extension by applying the corresponding civil liability rules ”… This last point obliges the courts to rule in their sentences on the required civil liability, which is not the case in all systems criminal.
Many victims are more interested in material or moral reparation for damage than in punishing the guilty. Similarly, in some cases, the accused is more afraid of civil liability than of criminal sanction. For this reason, the role of civil liability derived from crime as a way of contributing to general and special prevention should not be overlooked.
Regarding the civil liability provided in favor of legal persons, it is known that the procedure to make it effective has not yet been implemented, which represents millionaire losses for the State.
Some countries like ours allow victims or injured parties to bring civil action together with criminal action and, exceptionally, civil action is taken separately from criminal (article 275 of the Criminal Procedure Law, Injury cases). Others allow the civil action to be brought before the jurisdiction of this matter while the criminal process is running or through the processing of incidents after the criminal sentence has been handed down, while others only admit certain ways of making civil liability effective within the criminal process, for example, restitution.
Common features that these laws have are, for example, that voluntary compensation for damage may constitute a mitigating circumstance of criminal responsibility, an aspect that our Penal Code includes in article 52 subsection ch.
The civil obligation is joint and several among all those responsible, for which one can voluntarily assume the obligation of others with few exceptions and the civil obligation derived from the crime prevails over the other civil obligations contracted by the accused. Although the injured party or victim for civil liability is voluntary, the sanctioned person, however, will always be obliged to pay the amount that for that concept has been set in the sentence (2).
In our Criminal Procedure Law the figure of the injured party is not defined but we must understand that it is both natural and legal persons, which Criminal Codes of other countries do expressly clarify.
The ways of enforcing civil liability in Cuba are expressed by different names: restitution, compensation, reparation. The Cuban Penal Code does not regulate the civil liability of third parties or the payment of procedural costs in criminal proceedings.
Both natural and legal persons have the right to compensation action, accepting in some cases "reparatory" acts within the criminal process. In our case we have, for example, the crime of Embezzlement (article 336 section 6) in the form of restitution of the appropriate assets.
However, given the different gaps in the substantive and adjectival legislation, there are widely scattered provisions that have not yet managed to make up for the lack of clarity in many cases.
Current regulations regarding the amount of civil liability derived from crime in Cuba, suffer from inaccuracies that conspire against uniformity in the interpretation and consequent application of the law.
Therefore, there is a sufficient practical need to combine criteria in this regard and systematize them with a view to achieving a better application of the rules relating to civil liability.
Development
Entering the matter we must say that to determine the amount of restitution, reparation or compensation for civil liability, it is necessary to specify the amount of material damage or loss. The amount of the value of the goods, the damages or losses has an impact in many cases for the legal qualification of the fact in a directly proportional character, although legally the damage and the loss do not have the same meaning, such terms being used together or indistinctly to aggravate or reduce the sanction based on a basic modality of the criminal type; as examples we have in the crime of Acts in Detriment of the Economic Activity or Contracting (article 140.2) where the terms of damages are used in the aggravated modality,in the crime of Improper Use of Financial and Material Resources only the term damage is used (224.3) and in the crime of Embezzlement the term value is used (article 336.2.3) that is, the higher the amount, the more serious the crime; consequently, the lower the amount of damage or harm, the lower the criminal liability; In certain cases, the small magnitude of the damage makes a crime only prosecutable at the request of the affected party, as occurs in the crime of Damages (article 339.4).In certain cases, the small magnitude of the damage makes a crime only prosecutable at the request of the affected party, as occurs in the crime of Damages (article 339.4).In certain cases, the small magnitude of the damage makes a crime only prosecutable at the request of the affected party, as occurs in the crime of Damages (article 339.4).
The Civil Code, in its article 86, is responsible for specifying what the compensation consists of but refers only to cases in which the damage falls on the person himself or the environment. In legal practice, we only talk about compensation in those cases, say, Injuries, Homicides, Rape, to name a few examples.
Everything related to civil liability in the light of current times has been the subject of various interpretations in criminal proceedings. This is the first consequence of the fact that in our criminal procedure, civil liability is demanded jointly with criminal liability and a large number of criminal acts occur in which the prosecutor must request it and the court rule on it. An omission in this sense is not grounds for cassation (3) but it can give rise to a clarification order when the amount of the same can be clearly deduced from the proven facts and provided that the prosecutor has ruled on the matter, which requires both the instructor, the prosecutor and even the court to be very careful on the subject.
In this sense, there are countless agreements, circulars and instructions of the highest court of justice that deal with this matter without forgetting innumerable judgments that have made pronouncements, some contradictory and that, because they are very specific cases, do not establish a jurisprudential precedent of such force that constitute an obligatory reference.
Within the criminal process, both before and after the sentence has been handed down, cases may arise in which civil liability cannot be exercised. Let's see some examples:
In case of acquittal or death of the sanctioned person. In this case, the victim may present her claim, this time before the civil jurisdiction.
The author is declared not criminally responsible. The fact may not constitute a crime or there is some other cause that exempts it from criminal responsibility, but civil liability may remain due to its different nature according to article 82 of the Civil Code; Unless some of the exemptions established in article 99 of the legal text are applicable and in accordance with article 95 thereof, legal persons will respond subsidiarily if the crime is committed by leaders, officials or other workers in the improper exercise of their duties. functions, a particular situation that places us before a responsible civil third party not included in the Penal Code. On the other hand,The third section of the aforementioned precept is even more precise since it makes clear the civil responsibility that legal persons must assume with respect to the damages caused by their leaders, officials or other workers who have been acquitted in a criminal proceeding but have acted within its powers or due to due obedience.
In cases of unhealed injuries. In accordance with the provisions of Article 275 of the Criminal Procedure Law, further developed in Instruction 103 of February 16, 1982 of the Governing Council of the Supreme People's Court and later in Agreement 3/87. The aforementioned Instruction established certain requirements to guarantee an objective statement by the victim or their next of kin on these points, even empowering the court to complete with the evidence that is practiced in the oral trial, the elements that they unavoidably need to fix the amount of civil liability for not having to return the proceedings to the investigative phase with the delay that this causes; for that purpose,The aforementioned instruction provided that the file would only be returned to the prosecutor when the evidence provided by said elements could not be practiced in the oral trial and thus avoid a possible annulment in cassation for the violation of guarantees and procedural formalities.
Agreement 3/87 authorized the courts to proceed with the criminal action without exercising it jointly with the civil action when the injuries had put life in imminent danger, when the consequences can be appreciated or that the injuries will not cause death, blindness, castration or uselessness for procreation, as could occur, for example, when the victim was awaiting a very life-threatening surgical intervention; when it is possible to assess the dangerousness of the act and the degree to which the intention of the alleged perpetrator coincides with the result or when a person dies during the occurrence of a complex crime.
Agreement 72/88 clarified that the courts should not provide compensation to a hospital for the costs of healing, which in practice operates in this way with respect to those institutions, not with respect to individuals who are entitled to compensation in accordance with the provisions of Article 86 of the Civil Code. Based on this precept, it is provided through Agreement 37/89 that funeral and healing expenses are included, which are set according to the regulations and rates established for community services and that the expenses of the injured will be those essential to achieve proper health.
When the person responsible for a criminal act is a minor. In that case, criminal action is not exercised but it is possible to claim damages through civil proceedings against the parents of said minor, applying the provisions of the Civil Code, an aspect on which the highest court of justice ruled in Agreement 124 / 85.
Having issued an abstention order under article 8.2 of the Penal Code. Agreement 64/86 clarified to all the courts that the injured party can claim through civil proceedings in this case.
When it has been paid before the trial. This situation is addressed by Agreement 10/85.
It is generally accepted that neither the causes of termination of punishment, nor the conditional suspension of the sentence, nor the judicial pardon nor the amnesty unless expressly provided for by the amnesty law, nor the pardon, eliminate the civil obligations derived from the act punishable. Within the criminal process, for example, legitimate defense and the state of necessity exempt the crime and civil liability, but not the exempting cause of insanity due to mental alienation.
After the sentences have become final, only the acquittals issued in review trials extinguish civil liability when it is shown that the fact that gave rise to that obligation did not exist or is not directly or indirectly attributable to the person who had been sanctioned.
The conversion of the value, and the amount of the damage or loss to national currency.
In Cuba, the population can only purchase goods for use or consumption with the Cuban peso or the convertible peso, since they are the only two currencies that are accepted in commercial or service establishments, so any foreign currency must be converted for use in the retail network. These measures respond to the need to confront constant harassment from the United States, which is waging a cruel economic war against Cuba.
The courts in their criminal sentences declare civil liability in a high percentage, both in favor of natural and legal persons. As an institution created to enforce it, we have the Compensation Fund, but it only exists for natural persons as the Penal Code provides in article 71. There is not yet an institution that is in charge of making effective the very high sums for civil liability in favor of of affected legal persons.
In the event of establishing a compensation fund for legal persons, there is no discernible way in which they can compensate for the immense sums that will have to be paid to legal persons, since in many cases the sanctioned natural persons will not be able to pay in full the value of the property, damage or loss. On the other hand, although civil legislation allows it, no claims are being processed by legal persons with the right to compensation agreed by a final criminal judgment before the civil jurisdiction, pending the development of a policy to be followed in these cases, creating a situation of uncertainty in the face of this problem. In short, currently the legal persons with the right to compensation declared by final judgment in criminal proceedings against natural persons,they stop recovering millions of pesos.
Article 149 of the Criminal Procedure Law, modified by Decree 151 of June 10, 1994, states that “when for the determination of the jurisdiction or the classification of the crime or its circumstances, it is necessary to specify the value of the thing that Whether its object or the amount of damage caused, or that may have been caused, will be the said of the injured party, regardless of the power of the parties to propose or provide another means of verification and of the Court to assess this particular in the sentence. With this modification, the law gives a value of greater weight to the saying of the injured party, although without completely rejecting the commercial expert opinion and the judgment of the judge.
From this modification different doubts and interpretations arose. Some considered that the saying of the injured party should be taken into account to order compensation and the expert opinion to determine the qualification (4).
In the cases of damage to property whose value was given in freely convertible currency, various interpretations also arose regarding the conversion to the Cuban peso. It was assessed whether the injured party was a natural person or a legal person and in the cases of individuals, the form of acquisition of the currency (family remittances, CADECAS).
In practice, it is admitted that among legal persons the exchange rate must be 1 × 1, in this there is almost unanimity but there have been dissimilar criteria when the accused is a natural person; Some estimated that in this case it should be 1 × 1 and others that the CADECA exchange rate should be applied. Conflict situations occur in the latter case, for example, when the injured party (natural person) acquired an asset in national currency some time ago that can now only be purchased in convertible pesos.
Judgments of the People's Supreme Court
Judgment 4249/2002: "It must be specified whether the values correspond to freely convertible currency or national currency, state what the total is and make the conversion in an understandable way."
Sentence 5370/97: "The Judging Chamber rightly accepted as value of the stolen goods the detriment suffered by the assets of the injured party."
Judgment 1701/2000: "Regardless of the fact that the stolen sow - weighing 180 pounds - was appraised at 260 pesos, its owner actually suffered a greater loss since to acquire another animal with characteristics similar to those of the former, logically, I would have to pay it at a higher price as reflected by the instance, which is well known by all our citizens. "
Sentence 5276/2002: "The 1 × 1 conversion is not for individuals."
Sentence 2374/2002: "The judge followed the thesis of the accusation and considered that 294 dollars with 27 cents of the same denomination are equivalent to two hundred and ninety-four pesos and 27 cents in national currency when the truth is that the current reality tells us that the value of the appropriate amounts to seven thousand six hundred fifty-six pesos and 22 cents in national currency, this would lead us to the conclusion that we are facing a crime of Embezzlement of article 336 section 1, basic modality, whose framework runs between three and eight years of deprivation of liberty; Article 240 of the Civil Code that determines to require the payment of obligations in national currency cannot lead us to the fiction of equating the dollar to the national currency,since this would distort the institution of civil responsibility for illicit acts ”.
Sentence 5617/2007: “In the case under examination it is a state entity that trades in both currencies without prior conversion of one for the other. The Chamber did not consider this conversion to be appropriate (CADECA) and explained the reasons. Nor does it have access to exchange houses as a legal entity to obtain the equivalent and quantify the total values in national currency. It is not lawful to make a conversion to frame the crime in an aggravated figure that depends on the considerable value to be integrated or to seek compensation for the damage suffered in national currency.
See the contradiction that exists between these last two sentences.
Pronouncements of the Governing Council of the Supreme People's Court.
Circular 98 of the Governing Council of the Supreme People's Court established that in crimes whose subsumption in a legal type or subtype is determined by the amount of the value of the crime good or property, the real ascendency of that value in relation to with the specific economic situation existing in the country, since the determination of this aspect taking into account the simple intrinsic value of the property in question, does not represent it with realism, given the certain and effective damage that is caused patrimonially; Therefore, the determination of the amount of the value for the consequences or damages that is caused by the criminal act and not vice versa must be made.
The Governing Council of the Supreme People's Court, expanding what was expressed in the aforementioned circular 98 indicated that to determine the amount of the value of the property that is the object of the crime, the one that is admitted as rationally fair according to the means of evidence in the proceedings will be taken into account, It is the saying of the injured party, the evaluation of the experts, the statements of witnesses and the rational judgment that the respondent may make in this regard within the framework of the social reality of the moment. It also stated that a different value to the one paid to acquire it or to the official price assigned at the time of its acquisition may be admitted in the expert appraisal, taking into account that the outlay made by the victim to acquire the object does not always coincide with the current value of the same. In that sense,Repeated rulings of the Supreme Court have set the standard by stating that the outlay that the victim would have to suffer to acquire a similar asset today must be taken into account.
These novel pronouncements would oblige the experts to take into account for the appraisal not only the official price of the object or what was paid to acquire it, but also the sum of money that the injured party has to invest to currently obtain another asset with the same or similar characteristics.
The matter was complicated when the object had been acquired in foreign currency or Cuban convertible peso or simply the stolen property was that type of currency. Hence, Agreement 299 of the Governing Council of the Supreme People's Court, dated November 24, 2000, reiterated that in order to determine the value of damaged or stolen goods, which have been previously acquired by their owners with foreign currency, by means of Opinion 394 or Cuban convertible peso, or when the good object is the currency itself, making it necessary to determine its value in national currency to define competence, the classification of the crime, its circumstances or the damage caused,Proceed in accordance with the provisions of article 149 of the Criminal Procedure Law, adjusting the plaintiff to the said of the injured party regardless of the power of the parties to provide and propose other means of evidence and in particular the Court to assess these elements and point out definitely the value in question, according to their rational criteria, adjusted to the economic reality of the country. As stated in said agreement, the value of any good can be expressed in the amount of money in national currency that is needed for its acquisition in our company, taking into account possible depreciation and other estimates that may be made, regardless of the purchase price or other types of appraisals performed.
All this leads to the criterion of the injured party being taken into account, although not blindly, since he may try to obtain compensation much greater than the damage or injury suffered. For such purposes, the aforementioned Agreement states that the acting party should not be subject to the exchange rate established by the Central Bank (1 × 1), since this conversion lacks practicality for this type of operations, nor should it be subject to the exchange rate mechanically. CADECAS (1 × 25) but when it is considered that the injured party can only be compensated by acquiring dollars (at the moment Cuban convertible pesos) with national currency and then buying the goods of which he was deprived,This necessary operation can be taken into consideration to fix the value of these goods, for which it is not appropriate to take into account the origin or provenance of the currency or the object of the crime to establish its value, since what is important is the way in which it can be acquired lawfully by the general public.
The Agreement establishes that the Court will evaluate the said of the injured party and the evidence provided by the parties, both documentary, witness and expert, and will make its conviction as to the value of the damaged or stolen property expressed in national currency taking into account possible depreciations or other circumstances for its fixation both for the qualification of the figure and for the determination of civil liability arising from the crime.
When specifically what was damaged or stolen is foreign currency or Cuban convertible peso, the Court will abide by the price in national currency that the injured party indicates as an affectation regardless of practicing the tests proposed by the parties to determine the amount of money in national currency. with which the damaged or stolen currency can be acquired and replaced.
On the other hand, a very recent circular from the Supreme People's Court (Circular 223/2006) ratifies the importance of the testimony of the affected person for the quality of the expert report without applying the exchange rate mechanically and emphasizes the wording of article 336 of the Criminal Procedure Law which makes the full and supreme validity of the Court's rational criterion very clear.
The lack of a timely definition on the conversion to national currency has caused considerable damage to the national economy and has reported innumerable benefits to criminals apart from the fact that it is a very painful current reality that legal entities do not have expedited ways to claim the agreed compensation in their favor by the courts in their sentences or indefinitely accumulate civil proceedings on these claims.
However, when it comes to workers who cause damage or harm to the entity during the performance of their duties, the rules relating to material liability are applied without any difficulty.
To cite an example, the Empresa de Telecomunicaciones de Cuba SA (ETECSA) through Resolution No. 8 dated 1st. of November 1996, signed by its Executive President, had the Regulation on the material responsibility of the directors, officials and other workers of the Company, establishing in its article 12 that when there is damage, loss or loss of property for which there is no price In national currency or loss or misplacement of foreign currency or Cuban convertible peso, a coefficient that ranges between 5 and 20 times over the price in USD will be applied, for the formation of the price in national currency. Other entities that also operate in freely convertible currency or in both currencies have also established coefficients with more or less similar marks.
If a worker of these entities lost any good, said coefficient was applied to him; However, a criminal who committed robbery or theft of any of those assets was subject to the 1 × 1 change because ETECSA did not go to the CADECAS, which is an alarming arbitrariness since, regarding civil liability, the criminal who committed a A malicious and antisocial act received a more generous treatment than the worker who committed a culpable act that did not exceed the labor or administrative framework. For general prevention purposes this was not correct.
Resolution 25/2008 issued by the Minister President of the National Bank of Cuba in correspondence with the Fourth Special Provision of Decree-Law 249/2007 "On Material Liability", establishes for all entities as a coefficient for the purposes of applying the material responsibility of the CADECA exchange rate that exists at the time of the event and only with the express authorization of the Head of the Agency in question may a lower coefficient be applied. We estimate that if this coefficient is applied to a worker who causes damage with his reckless behavior, a lower coefficient should not be applied to a criminal who steals, steals or embezzles.
Because of all the aforementioned, I believe that there is still no clear definition by the Governing Council of the Supreme People's Court regarding the amount of civil liability derived from the crime, so it is necessary to combine criteria and that an Instruction be issued that deal broadly and expressly with this important matter and define the procedures to be followed by legal persons to claim the compensation agreed in their favor through criminal sentences.
Conclusions
As we can see, Cuban legislation is in urgent need of clarification regarding civil liability.
At present, the criterion of the injured party is gaining more weight than ever to estimate the amount of the damage, with relevance for the purposes of the legal classification of the fact and the pronouncement on civil liability.
Despite the innumerable pronouncements in judgments, agreements, circulars and instructions of the Governing Council of the Supreme People's Court, it is necessary to issue a rule that once and for all serves as a reference for all cases that arise. This regulation could, for example, be an instruction from the Governing Council of the Supreme People's Court that summarizes and updates all the pronouncements made to date. This would be my recommendation.
Notes:
(1) This phrase is quoted by Juan JE Casasus in his work “Code of Social Defense and Complementary Criminal Law published in 1950 by Editorial Molina y Compañía, page 677.
(2) See in the cited work page 679 a judgment of the Supreme Court of Justice where it states that the matter of civil liability cannot be subject to cassation. This approach has been confirmed by more recent judgments. We consider that in this case it refers to the amount but not to the case where the Prosecutor narrated the factual elements in the first of the conclusions and requested restitution, reparation or compensation and the Chamber failed to rule on the matter.
(3) Ibid. The criterion that the civil claim by the affected party is voluntary is generally accepted. Currently, the Court by written notification instructs the affected party that in order to claim the payment of the compensation agreed in his favor, he must write to the Compensation Fund within a term of ninety calendar days and after said period has elapsed without having claimed, the right prescribes. to make it effective.
(4) The experienced Judge of the Las Tunas Provincial People's Court, Lic. Eberto Facundo Vega Ávila, includes this situation among his experiences exposed in the unpublished article: “The value of the damages or losses caused by the crime”.
Bibliography
Agreements, Circulars and Instructions of the Supreme Court.
Social Defense Code. Juan JE Casasus. Volume 1.
Penal Code.
Criminal Codes of Colombia, Mexico, Argentina, Guatemala and Costa Rica.
Civil Code.
Eberto Vega Ávila "The value of the damages caused by the crime" (unpublished article).
Criminal Procedure Law.
Legal Review number 3 year 2001, Ministry of Justice.
