CUBA: National Laws

Summary: General overview of Cuba's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of CRC in national law
The Article 12 of the Constitution of the Republic of Cuba, reaffirms “respect for the principles...in...international treaties to which Cuba is a party”, which means that Cuban legislation must be interpreted to be consistent with the treaties, conventions and other international instruments to which the country is a party. To date, however, the CRC has been not invoked national courts.

Constitution: The Constitution of the Republic of Cuba includes some provisions that specifically address the rights of children and the rights of parents in relation to children:

• Art. 9, paragraph (b) provides that the State, “as the people’s power, in the service of the people, guarantees: that no child shall go without schooling, food or clothing; that no young person shall be deprived of the opportunity to study; that no person shall be deprived of access to education, culture or sport”.

• Art. 28 guarantees the automatic right of children and adolescents born in the country to be Cuban citizens and details the different situations that may arise with a view to ensuring that no child is deprived of this right, even if born outside Cuba or to non-Cuban parents.

• Art. 37 states that all children have equal rights whether born in or out of wedlock, and mandates that no records be kept of a child's parents' marital status.

• Art. 40 establishes that “children and the young are given particular protection by the State and society” and that “[f]amilies, schools, State agencies and social and mass organizations have a duty to pay special attention to the full development of children and the young.”

• Art. 51 establishes that “this right is guaranteed by the extensive system of free day schools, boarding and semi-boarding schools and bursaries for every type and level of education, and by the provision of free school materials, providing every child, adolescent and young person, irrespective of his or her family’s financial situation, with the opportunity to undertake courses of study that match his or her aptitudes the requirements of society and economic and social development needs”.

Legislation: Cuba does not have a consolidated Children's Act, but rather legislation pertinent to children's rights is found throughout state's national law. The legislation related to the subject matter of the CRC includes, but is by no means limited to:

• The Children’s and Youth Code (No. 16, 28 June 1978)

• The Family Code (No. 1289,14 Feb. 1975)

• The Civil Code (No. 59, 16 July 1987)

• The Labour Code (No. 49, 28 Dec. 1984)

• The Criminal Code (No. 62, 29 Dec. 1987; No. 175, 17 June 1997; No. 87, 16 Feb. 1999)

• The Criminal Procedure Act (No. 5, 15 Aug. 1977)

• The Civil Registry Act (51, 15 July 1985)

• The Working Women’s Maternity Act, (No. 1263, 14 Jan. 1974; No. 234, 13 Aug. 2003)

• The Associations Act (No. 54, 27 Dec.1985)

Legal Research:
The power to legislate is vested in The National Assembly of People’s Power (Asamblea Nacional del Poder Popular) which maintains a website in Spanish (http://www.parlamentocubano.cu/). Some legal documents including an English translation of the Constitution of the Republic of Cuba can be found in, the International Labour Organization database NATLEX (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=CUB). In addition, the U.S. Library of Congress (http://www.loc.gov/law/help/guide/nations/cuba.php) and the World Legal Information Institute (http://www.worldlii.org/cu/) have assembled a number of useful links to legal research and government websites.

Case law
CRC Jurisprudence:
Please contact CRIN if you are aware of any cases in national courts that reference the Convention on the Rights of the Child.

Case Law Research:
The People's Supreme Court (Tribunal Supremo Popular) maintains an official website offering full text decisions in Spanish (http://www.tsp.cu/).

Compliance with the CRC
In its 2011 Concluding Observations, the Committee on the Rights of the Child reiterated concerns about national legislation in force enacted before the Convention was ratified, in particular the Family Code, Child and Youth Code, and Law on Adoption, Alternative Care settings and Foster Families. The Committee was also “further concerned that the State party is experiencing difficulties in adopting new or amended legislation, including the draft Family Code.”

In depth analysis:
One of the fundamental incompatibilities of Cuban law in respect of the Convention lies in the definition of the child. Children reach the age of majority at 16, at which point they are able to marry and are no longer protected by laws on the corruption of minors and certain labour laws. While Cuba has made a declaration on article 1 of the Convention, the Committee has nevertheless urged the State to amend all relevant legislation, particularly the Penal Code and Labour Code, to increase the age of majority to 18.

With regards to violence against children, the law permits parents and guardians to physically discipline their children. Corporal punishment remains common and socially acceptable in schools and social institutions. The Draft Family Code in its current form would remove provisions allowing such punishment, but it is yet to be passed. The Committee has recommended that the State prioritise the adoption of the Draft Code, alongside social steps to eliminate the practice.

Cuban treatment of children in conflict with the law falls short of the CRC in a number of ways, perhaps foremost in that there is no specialised and separate juvenile justice system. Cuban law treats children between the ages of 16 and 18 as adults, and if sentenced to terms of imprisonment, they are detained with adults up to the age of 27. Moreover, while the age of criminal responsibility is 16, children under this age can be placed in institutional facilities for relatively minor offences, but without the safeguards of a criminal trial. The Committee has recommended a wide range of reforms in this area, focussing on the creation of a specialised system of courts for children in conflict with the law and comprehensive legal reforms to bring the law into compliance with the CRC.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.