On December 6 the president of the Cuban Society of Criminal Sciences, with the National Union of Jurists of Cuba, Mayda Goite Pierre, stated at a press conference that young people ages 16 to 18 being tried as defendants will receive special treatment, being eligible for accompaniment by their parents and defenders, and to count on the participation of specialized institutions and the issuance of alternative sentences.
The statement is ironic considering the number of Cubans of those ages who have been tried, or remain in jail, for participating in the 11-J protests.
One of the controversial questions is why, if the Civil Code, in accordance with the Convention on the Rights of the Child, defines adults as those 18 and up, all of them are being assigned criminal responsibility.
The fact that the draft version of the new Family Code has rejected child marriage, considering the harm that adopting adult roles entails for girls and boys, raises the question as to why someone considered too young to marry is not considered too young to be assigned full criminal responsibility.
Civil liability and criminal liability differ, however, the latter stemming from the commission of a crime set down in the Penal Code.
In the Americas, Cuba and Argentina set the highest age of criminal responsibility: 16. Countries like Colombia and Venezuela set it at 14. In Haiti, Nicaragua and the Dominican Republic it is 13.
In Costa Rica, Jamaica and Brazil people ages 12 and up are held criminally responsible; in the South American giant people ages 12 - 18 must be tried within the juvenile justice system.
This, however, is not the lowest age of criminal responsibility in the region, which is 7, established by Trinidad and Tobago.
In Europe, Belgium is the country that sets the highest age to try someone: 18. The lowest is Switzerland's, age 7, but there is a special regime for minors 7 to 14 and from 15 to 18. Reintegration measures are regularly applied. As in the Netherlands, specialists and doctors are used to redirect the minor's behavior. If the case is extremely serious, confinement to a facility is considered.
In Germany, criminal responsibility begins at the age of 14, before which no one is considered guilty and cannot be charged with a crime. Those ages 18 to 20 are considered semi-adults. But, even at that age, to be charged they must be assessed to determine whether, when committing the crime, they were fully responsible for their actions and had attained a certain level of maturity. If not, they can be exonerated.
In Cuba, however, the question is not whether Cubans between the ages of 16 and 18 imprisoned for the 11-J protests were fully responsible for their actions. The question is whether they committed a crime.
According to the president of the Supreme People's Court (TSP) of Cuba, Rubén Remigio Ferro, demonstrating in Cuba, far from constituting a crime, is a constitutional right of the people.
Emiyoslan Román Rodríguez, Brandon David Becerra Curbelo and Rowland Jesús Castillo Castro, who served 18 years in prison, and Jonathan Torres, 17, did that, although they face charges ranging from disturbing the peace, to spreading an epidemic, assault, and sedition.
Even if they committed these crimes, which must be demonstrated in a trial, the treatment that the Cuban judicial system has so far given them and other minors arrested during and after the 11-J exhibits a clear intention to punish, with the greatest possible severity, any sign of disagreement with the regime, regardless of the offender's age, personal situation or health.
Pre-trial detention, a precautionary measure imposed on these adolescents, is the most stringent with which people awaiting trial are secured, as it implies conditions similar to the actual fulfillment sentence entailing incarceration.
Although prosecutors are authorized to impose it, Article 356.1 states that the measure is exceptional and appropriate only when "there are sufficient grounds to assume that the accused is criminally responsible for the crime and any of the following circumstances apply: a) the serious nature of the crime; b) the possibility that he/she may obstruct the investigation, inquiry, trial or the execution of the sentence."
The need for and relevance of the measure are supposed to be evaluated, as are the age of the person, their state of health, family situation, vulnerability and any other relevant circumstances related to the alleged crime. When it has been adopted, it requires ongoing review.
Jonathan Torres suffers from a hypertrophy in the left ventricle of the heart, a product of high blood pressure requiring him to take medication every day. Between his arrest on August 13, until at least October 2, he had no access to his medication. He is accused of disturbing the peace and assault.
Since September 27 he has been held along with adult inmates who have already been tried, which constitutes a violation of the Convention on the Rights of the Child, signed and ratified by the Cuban State, in addition to Article 30.1 of the current Cuban Penal Code. Subsection 9 states that "those under 20 years of age are to serve out their sanctions in establishments specially designated for them, or in sections separate from those intended for adults."
Rowland Jesús Castillo Castro has also been the victim of the same violations; incarcerated in the same prison, he is the father of a one-year-old boy that he has not been able to see. He was held incommunicado for 15 days after his arrest. At first he was accused of disturbing the peace and assault. The charge of sedition has been added. The prosecutor is seeking a sentence of 23 years in prison.
Brandon David Becerra Curbelo is not allowed to receive visitors. On September 28 a change in the precautionary measure applied to him was denied for the second time. Initially he was accused of disturbing the peace and spreading an epidemic. Now he also stands accused of sedition, and the prosecutor's request is for 18 years in prison.
Emiyoslán Rodríguez, who from his arrest on July 14 until at least October 2 could not see his family, faces a 15-year sentence for crimes that also include sedition.
According to Article 17.1 of the Penal Code, for those over 16 and under 18 the minimum and maximum limits can be reduced by half. For people ages 18 to 20 they can be reduced by up to a third.
According to the article itself, the prevailing aim should be to re-educate the person, train him in a profession or trade, and "instill respect for the legal order."
In November the United Nations Children's Fund (UNICEF) expressed concern about underage Cubans detained during and after the peaceful protests on July 11.
Until then, the Justicia 11J platform had been able to verify the arrests of 43 minors (under 18 years of age).
According to the list, 29 had been released; exonerated, with fines, or awaiting sentencing. Amanda Hernández Celaya, Gabriela Zequeira and Katherine Martín, all 17 years old, were tried in summary trials.