Elian's aftermath lingers, George W.
Bush insists on maintaining the
embargo against Cuba, and
anti-U.S. demonstrations are still
the order of the day in Havana.
But a new type of day-to-day
interaction between Miami and
Cuba is quietly emerging.
Four of Cuba's top lawyers visited
Miami last week to present their
views of that country's legal
system at a conference organized
by the U.S./Cuba Legal Forum -- a
group recently formed by
Cuban-American attorneys.
The conference looked at a part of
the Cuban legal system that
U.S.-based lawyers rarely see.
"Let's forget about political
influence, which can exist in many
judicial systems," said Antonio
Zamora, one of the Miami lawyers
who brought the four to the
conference. "In the Cuban justice
system, 99.5 percent of all cases
have absolutely nothing to do with
national security. There's a legal
process. People get divorced,
business conflicts get resolved."
The only legal contacts between
the neighboring countries are in the
field of intellectual property law,
occasional high-profile custody and
commercial cases, more or less
regular meetings on immigration
issues and spotty cooperation in
drug enforcement.
Meanwhile, people on both sides of
the Florida Straits don't receive
justice. Lawyers in both the U.S.
and Cuba lament the fact that
criminals don't get extradited,
deadbeat parents don't even
pretend to hide and many, mostly
elderly, Cubans cannot retrieve
inheritances from relatives in the
United States.
Zamora's view of the Cuban legal
system is not necessarily out on
the edge. The Hughes Hubbard &
Reed associate frequently travels
to Cuba but in his case, it's
special: Zamora is a Bay of Pigs
veteran, a one-time prisoner of the
Cuban state, and a former board
member and counsel at the
anti-Castro Cuban American
National Foundation.
And 10 years after the demise of
the Soviet Union, with Castro still
firmly in power and ships docking in
Havana to deliver commercial U.S.
goods, the attention in Florida is
slowly turning to the realities of
the existing legal system in Cuba.
Changes in attitude
notwithstanding, Zamora and
intellectual property attorney Jesus
"Jay" Sanchelima, who co-founded
the U.S./Cuba Legal Forum with
Zamora, were careful to keep the
conference low-profile. Florida
International University hosted the
event, which featured a dozen
panelists, an invitation-only
audience of perhaps 50 -- and no
reporters.
Among the stumbling blocks in
normal legal relations are the
high-profile cases against Cuba
that regularly play in Florida courts.
While the Cuban state makes its
case in some court proceedings in
Florida, it doesn't bother when it is
a defendant.
"In cases against the Cuban state,
we don't believe in the impartiality
of the courts," said Juan Mendoza,
a law professor at the University of
Havana and vice president of the
Union Nacional de Justistas, which
is akin to a bar association. "When
there's a case against Cuba,
there's a lot of prejudice, both
among judges and jurors.
"
But the conference focused on
everyday law in Cuba. The Cuban
justice system, if you believe
Cuban lawyers, fares well
compared with other countries
when it comes to access and
efficiency.
"We're faster than most countries
in Latin America," said Rodolfo
Davalos, president of the Cuban
Society of Business Law and an
arbiter in commercial cases. "In
other countries, I have very often
seen commercial cases, such as a
pay dispute, last three or four
years. In Cuba, it's generally a
matter of months."
The average duration of the
150,000 cases the Organizacion de
Bufetes Colectivos takes on every
year is six months. The
2,000-lawyer firm, with offices in
all towns, has a near-monopoly on
law practice on the island.
"The average duration of each
case is not longer than half a
year," said Raul Mantilla, OBC's
president. "And that includes
simple, complex and really complex
cases.
"
Still, one of the concerns that
foreign observers have with Cuban
law is the perception that politics
interferes in high-profile cases.
"I'm under the impression that
politics are very rooted in the
Cuban court system," Sanchelima
said. "If there's a case that
touches on national security --
forget it. That's a big problem."
But the four Cuban lawyers
strongly rejected the notion that
the legal is system is
remote-controlled.
"I've practiced for 15 years,"
Mendoza said during a roundtable
discussion at the Daily Business
Review one day after the
conference. "I've been in all kinds
of cases -- civil cases, criminal
cases. I've defended people who
stole simple things. I've defended
people who were threatened with
the death penalty. I've defended
an interior vice minister ... . That
was a case of national importance.
I never received a call from the
powers, a hint, or anything in the
exercise of my profession.
"
But Cuba's legislature, which is
tightly controlled by the Communist
Party and affiliated mass
organizations, has the last word on
all judicial appointments.
Cuban judges, according to
Mendoza, are nominated by the
supreme court and confirmed by a
general vote in the Popular
Assembly, Cuba's parliament.
A "Government Council" within the
supreme court nominates supreme
court judges from among the
country's judges. The Popular
Assembly also votes on supreme
court nominations. Judgeships are
for life.
But Davalos said that parliament
doesn't interfere in the daily
practice of law.
"How does the Popular Assembly
hold the supreme court
accountable? It's about judicial
policy issues," he said. "How many
cases did you resolve? In how
much time are they resolved? Did
they work within budget? How
much do they need?' This is the
only way the judicial system
answers to power.
"There's absolutely no precedent
that the power organ would ask
the judicial system, 'Who did you
rule for?' 'Who did you not rule for?'
'How many times did you rule
against Cuba?' The judges only
owe to the law, they're totally
independent in every single case,
and nobody has the right to revise
a case with a final judgment.
"
In the criminal justice area, Mantilla
pointed out, the way Cuban courts
handled the Central American
terrorists who exploded bombs in
Cuban hotels was considered fair
by foreign observers. As to
intellectual property law, in one of
the rare cases involving a
complaint by a U.S. company, Kraft
Foods Inc., a Cuban judge decided
in favor of the American plaintiff,
Mantilla added. Mirroring Cuba's
partial opening to foreign
investment and some private
initiative since the collapse of the
Soviet Union, the legal system on
the island has gone through a
controlled series of changes.
Still, the practice of law is limited
mainly to the Organizacion de
Bufetes Colectivos. Although the
autonomous nonstate organization
aspires to make a profit, its mission
is mainly to provide everybody
access to the law.
Founded in 1965, Bufetes
Colectivos at first served mostly
individual clients. But in the early
1990s, it began to take on
economic, financial and commercial
cases. Last year, the organization
represented some 300,000 Cubans
and 1,200 business entities.
Bufetes attorneys receive basic
salaries and fees for each
assignment, but charge ordinary
Cubans little or nothing for their
services. They receive
profit-sharing checks at the end of
each year amounting to a month's
salary, according to Mantilla.
The law firm gives 25 percent of its
profits to the state, on top of a
contribution to a social security
fund. The remainder goes to the
lawyers, who then pay an individual
35 percent income tax.
Mantilla says firmly that Cuba does
not plan to reintroduce private law
practice, abolished in 1974, more
than a decade after the revolution.
"This is a stage we have already
overcome," he said. "We've had
bad experiences with that. We
have an organization with a social
goal that serves the population.
Even the poorest have access to a
lawyer."
But there are exceptions.
The wave of foreign investments
and rising tide of foreign trade with
capitalist nations brought about
change in the area of commercial
law.
For one, a handful of Cuban
lawyers now work as corporate
counsel at some of the island's
larger companies, according to
Davalos.
And a growing number of more
business-minded "boutique firms"
tend to the needs of the
mushrooming group of foreign
investors and traders.
Carlos Rafael Grillo, one of the four
visiting Cuban lawyers, is an
adjunct professor of law at the
University of Havana and a lawyer
with Bufete Internacional. He also
has a law practice in Cancun in a
joint venture with a Mexican law
firm.
In one typical case, Grillo
represented a Mexican company in
arbitration with its Cuban business
partners who were eight months
behind with payments -- a rather
common occurrence in
cash-strapped Cuba. Grillo said he
worked out a compromise payment
plan with the Cubans.
Grillo also assists U.S. companies
that plan to do business in Cuba
once the U.S. embargo is lifted.
The success of the small
conference spurred hopes that it
might grow into something bigger.
"We have lived separated lives.
We're only 45 minutes apart, but
we know very little of each other's
legal system," Davalos said. "This
exchange between lawyers is
changing things. If we could make
this more frequent it would be very
helpful."
