Cuba: New administration’s Decree 349 is a dystopian prospect for Cuba’s artists
In response to Decree 349, one of the first laws signed by Cuba’s new President Miguel Díaz-Canel in April 2018, which will come into force in December and has provoked protests by independent artists in Cuba, Erika Guevara-Rosas, Americas Director at Amnesty International said:
“Amnesty International is concerned that the recent arbitrary detentions of Cuban artists protesting Decree 349, as reported by Cuban independent media, are an ominous sign of things to come. We stand in solidarity with all independent artists in Cuba that are challenging the legitimacy of the decree and standing up for a space in which they can work freely without fear of reprisals.”
“As far back as the 1980s, Amnesty International has documented the harassment and arbitrary detention of independent artists in Cuba simply for peacefully expressing their opinions through art. Instead of consolidating their control over artists perceived to overstep state-sanctioned criticism, the Cuban authorities should be making progressive changes to protect human rights.”
Signed by President Díaz-Canel in April and published in Cuba’s Official Gazette in July, Decree 349 is expected to come into force in December 2018.
Under the decree, all artists, including collectives, musicians and performers, are prohibited from operating in public or private spaces without prior approval by the Ministry of Culture. Individuals or businesses that hire artists without the authorization can be sanctioned, and artists that work without prior approval can have their materials confiscated or be substantially fined. Under the new decree, the authorities also have the power to immediately suspend a performance and to propose the cancelation of the authorization granted to carry out the artistic activity. Such decisions can only be appealed before the same Ministry of Culture (Article 10); the decree does not provide an effective remedy to appeal such a decision before an independent body, including through the courts.
Amnesty International is concerned that the decree contains vague and overly broad restrictions on artistic expression. For example, it prohibits audiovisual materials that contain, among other things: “use of patriotic symbols that contravene current legislation” (Article 3a), “sexist, vulgar or obscene language” (Article 3d), and “any other (content) that violates the legal provisions that regulate the normal development of our society in cultural matters” (Article 3g). Furthermore, it makes it an offence to “commercialize books with content harmful to ethical and cultural values” (Article 4f).
Prohibiting artistic expression based on concepts such as “obscene”, “vulgar” or “harmful to ethical and cultural values” does not meet the tests of legitimate purpose, necessity and proportionality required under international human rights law. The lack of precision in the wording of the decree opens the door for its arbitrary application to further crackdown on dissent and critical voices in a country where artists have been harassed and detained for decades. This would not only contravene the right to freedom of expression of artists in Cuba, but the right of every person in the country to seek and receive information and ideas of all kinds.
International human rights law and standards require that any restriction to the right to freedom of expression, including through art, must be provided by law and formulated with sufficient precision to avoid overly broad or arbitrary interpretation or application, and in a manner that is accessible to the public and that clearly outlines what conduct is or is not prohibited.
Restrictions must also be demonstrably necessary and proportionate for the purpose of protecting a specified public interest which, under international human rights law, are only national security, public order, and public health or morals, or the rights or reputations of others.
As signatory to the International Covenant on Civil and Political Rights (ICCPR), Cuba is required to refrain from acts that would defeat the object and purpose of the treaty. Article 19 of the ICCPR specifically protects the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds…” including “in the form of art”.
The rights to freedom of opinion and expression are essential for the full development of any person or society, and are key to enabling individuals to exercise other human rights. As such, under international law, states have a duty to protect the free expression of ideas and opinions of all kinds, including when deeply offensive. Laws restricting insult or disrespect of heads of state or public figures, the military or other public institutions, flags or symbols are prohibited under international human rights law.
The blanket requirement for prior authorization by the Ministry of Culture of an artist’s work to be shown in public, as set out in Article 2.1, would also impose controls over the exercise of artistic expression that may amount to prior censorship and would exceed the permissible restrictions on the right to freedom of expression.
Amnesty International is further concerned that Decree 349 is likely to have a general chilling effect on artists in Cuba, preventing them from carrying out their legitimate work for fear of reprisals.