Oscar A. Salas, Esq.

I. Legislation enacted by the Castro Regime; direct and total control

of the Registries by the Minister of Justice

The first laws of the Cuban government that took power on January 1, 1959, enacted legislation which not only acknowledged the existence of the Registry of Property, but also included provisions which could only be enforced through such Registry. The Law of Agrarian Reform of 1959[1] created a Rural Property Section in each Registry to record "every entry regarding rural properties, starting from the date to be determined in the legal regulations regarding how said Section shall operate."[2] Such regulations were never enacted and therefore the afore-mentioned Section never existed. The Law of Urban Reform enacted in 1960[3] did not mention either the Notaries or the Registry of Property but a resolution adopted by the Urban Reform Superior Council a few days later[4], granted to the titles issued by same Council the same evidentiary value as the rest of the documents already recordable in the Registry of Property. Another resolution of this Council[5] reiterated that all such titles must be recorded in the Registry. This 1965 legislation and resolutions of the Council were enforced only temporarily and partially regarding urban properties situated in the city and province of Havana. Such recordations were made in the Registry of Property books transferred to the offices of the Ministry of Justice. The reason for such reduced application was the lack of "efficiency which would have been necessary to provide such service."[6]

In 1965 Law No. 1180 was enacted[7] reducing to a minimum level the scope of the Registry of Property. The preamble of the Law states "that the transformation of the economic foundation of the Revolution and the transit toward the integral establishment of Socialist measures require the adoption of Legislative provisions so that the Registries of Property and the General Archives of the [Notarial] protocols which now do not have the importance that they have in the capitalistic system be structured in a way adequate to fulfill the functions which they still have to perform". [italics are ours]

Law No. 1180 radically reformed the Registries of Property and granted to the Minister of Justice extraordinary powers which before its promulgation corresponded to the Congress and substantially amended the norms regarding the Registries of Property and the Registrars as provided by the Mortgage Law of 1893. Thus, in paragraph (a) of Art. 1 the Minister of Justice was authorized to divide the present Registries or to merge several of them and to regulate the organization and functioning of their Sections. Those powers were the equivalent of allowing the Ministry to disregard the provisions of the Mortgage Law. In spite of its brevity, and construing it in relation to the rest of the Legislation, it is evident that the aforementioned Law considered the Registry as formed by two Sections, Rustic and Urban which later on would be sent to two different Registries, as indicated above.

Using the powers granted to him by the aforementioned Law No. 1180, the Minister of Justice merged several Registries which later on were decentralized again, so that no longer included the totality of a Judicial District [Partido Judicial] but only a municipality as it was finally provided by the laws creating the Registries of Land Tenure (for rural land) and of Urban Housing and of Unimproved Lots. Those laws will be alluded to below. This decentralization was facilitated by Art. 230 of the Mortgage Law of 1893 (Ley de Ultramar or Law for Overseas) which provided that a Book or one series of volumes be opened for each municipal district within the area covered by the Registry.[8]

Paragraph (b) of the same Art. 1 authorized the Minister of Justice to freely appoint and fire the Registrars of the Property and the Chiefs of the [Notarial] Protocol General Archives, in both cases to be considered temporary personnel, and in the following paragraph (c) the Minister was empowered to appoint and fire the rest of the employees of both offices complying with the Labor Law in force. The fact that the appointment of all the personnel was considered as temporary and that there was no provision indicating how they would be appointed in the future suggests that a decision had already been made to create the Land Tenure Registries and the Registries of Property for Housing and Urban Lots which will also be dealt with below.

Law 1180 also authorized the Minister to appoint as Registrars of Property persons who had been Temporary Registrars or employees of any Registry of Property, even those who did not have a law degree. At the same time, the position of Chief of the General Archive [Notarial] of Protocol was also opened to lay persons.[9]

The Registrars of Property and the Chiefs of the General Archives of Protocol and the rest of the employees in their offices would receive the salary to be decided by the Minister of Justice. This Minister would make a scale of fees of the amounts to be paid by each interested party for those services. That money would be kept under the control of the Minister in a Fund used for paying the salaries of the personnel and the expenses for the functioning of those offices.

The afore-mentioned Law abrogated the existing appeal against the decisions of the Registrars of Property before the Judge of the First Instance of the locality, and against which another appeal could be made before the Ruling Board of the Court of Appeals, against whose decisions yet another appeal was permitted, which was decided by the Ruling Board (Sala de Gobierno) of the of the Supreme Court of Justice. Instead of such appeals, the new law authorized an appeal before the Minister of Justice, whose decisions were final because no other appeal could be made against what he decided, neither in the Administrative Procedure nor in the Judicial Branch.

Another change introduced by Law No. 1180 was to abolish the bond to secure the payment to the interested parties of the indemnification to the prejudiced parties for acts or omissions committed by the Registrars of Property in the performance of their duties. Such liability could be construed as imposed on the Government if Art. No. 26 of the 1976 Cuban constitution[10] is applicable.

Law No. 1180 also provided that the Registry of Property books and documents and the General Archives of Protocols [Notarial Instruments] were to be transferred to the Academy of Sciences (in fact to the Historical Section of said Academy) whenever, after examination, they were declared of no use and value. This was the same as considering them of only historical value. The Registries of Property, though not yet abolished were reduced to small offices to record the few titles and documents which still could be considered recordable as survivors of the old regime. In order to keep the temporary Registrars and their subordinates busy, this same law put them in charge of the Registries of the "Estado Civil" (Vital Statistics).[11]

A law enacted in 1976[12] granted to the Ministry of Justice the power to direct the technical aspects of the Registries activities. Using those powers said Ministry issued and Instruction[13] containing the rules for the reorganization of the Registries of Titles and the issuance of certificates and exhibition of the books of the Registry of Property. This Instruction empowered the organs of the Popular Power of each municipality to provide the services and activities related to the National Patrimony, the Registry system and the real property publicity. "This Instruction of the Ministry of Justice set forth what survived from the abolished Mortgage Law [which governed the Registries of Property] and its Regulations of 1893... and at the same time gave the Registrars of the Property the necessary information on what remained of the Registrar system after the blows of the Revolutionary Legislation to the mortgage credit and the Registries."[14] The same Ministry was empowered with the methodological direction of the Registries of the Property by Law Decree 67 of 1983.

It is amazing that such abundant legislation was enacted and not enforced, as admitted by a government public official and legal writer who considers it a reason for the great reduction in the Registrar activity.[15]

Finally, the second of the two General Housing Laws (No. 65 of 1989) transferred to the National Institute of Housing (Instituto Nacional de la Vivienda) all the powers and functions previously given to the Ministry of Justice regarding the National Patrimony and the Registry of Property. This happened, according to a Cuban legal writer, "after some kind of pilgrimage during which some Registries were transferred to the Academy of Sciences, which proves their passive nature and their relatively infrequent use."[16] After acknowledging that the majority of the transfers of ownership made in the last years have not been recorded in the Registry of Property which has not been updated, the same author adds that the Registries of Property exist only "as offices for the recordation of some kind of titles on land" and that they "will not be apt to be used in the new Registry system which will be created for the control of real property in Cuba."

Another Cuban legal writer ratified that the "old" Registry of Property still exists but with a precarious life.[17] He added that "the titles granted under the Law of Urban Reform were never recorded in said Registry and admits that said titles did not meet the requirements to be considered recordable because they did not include the description of the property, omitting not only the boundaries and the area but any description at all because there was no interest in recording them. "The Registry of Real Property was totally out dated regarding housing... after 25 years of new constructions which were never recorded and transfers of property made under the Law of Urban Reform without any recordings.[18]

The same legal writer stated that it was necessary to create a new Registry "not as a means of legal guarantee (the best guarantee is the occupation by the owner) but as a means of urban control, because the nation [the government] needs to know everything regarding the housing fund, including its tenure; that is the reason why it convenient to create, for the purposes of urban control, a housing registry. But the old, anachronistic Registry of [Real] Property."[19]

Another Cuban jurist said that the recordations ordered by the Law of Urban Reform were never made "and in this manner the Registry of Property did not renew its function nor adapted its substance but continued surviving as a secondary source of documental evidence or, simply, as historical reference for the real property and real property rights of pre-revolutionary Cuba".

The obsolescence of the Registry of Property in Cuba is shown also by the absence of any reference to the Registry of Property or to the Mortgage Law in the new Civil Code enacted in 1987.[20]

II. The Registries of [Real] Property in Castro's Cuba in 1993

A. The Land Tenure Registry

In 1983 the Law for the Organization of the Central Administration of the Nation[21] was enacted. It granted to the Ministry of Agriculture the powers to direct, carry out and control the implementation of the governmental policy regarding the land fund devoted to agriculture, cattle raising and forestry as well as any other agricultural activities including the sugar cane land which was controlled in every other aspect by the Ministry of Sugar.

In 1987 and using those powers, the Minister of Agriculture issued two resolutions numbered 597 and 598[22] of which he was the only signer. The first of said resolutions, No. 597 created the Land Tenure Registry which was structured in three levels, the Central, the Territorial and the Municipal, the last one subordinated to the Territorial and the latter subordinated to the Central. The Minister of Justice was totally excluded. Said resolution mentions as the only reason for the new Registry's creation the control of the legal tenure of the land by means of the Registration of the Tenants in those offices. Resolution No. 598 contained the rules for the functioning of the Registry.

Resolution No. 598 of 1987 was abrogated in 1990 by a new resolution (No. 288)[23] which defined the Registry of Land Tenure as "an organized system to control the land tenure."[24] In this new resolution the main functions of the Registry were set forth, the most important of all being "to keep updated the control of the land fund in the National, Territorial and Municipal levels."[25] The Registry was given the power to "determine the legal situation of all kind of tenants",[26] something that should have been reserved to the Courts of Justice.

The Registry must gather information to keep updated.[27] That information goes to files[28] and include any document brought by the tenants to the municipal office of the Registry[29] plus the findings of an investigation which must be done in each case by said office,[30] the opinion of the investigator and the sanctions imposed by the Registry to the tenants who do not comply with their obligations. This territorial office may order more investigations and will collect more evidence. Then the file is sent to the territorial office for its approval. A certificate of title is issued by the Registry and delivered to the tenant. This certificate is deemed to be the only document that may prove the legal tenancy of the land. This certificates expires at the end of each year and must be renewed again and again.

The role of the Registry is mainly to know who the legal tenants are in order to make periodic inspections of those tenants to verify how they comply with the obligations and prohibitions imposed on them; to check whether some unauthorized assignments of areas of land have been made or, in case of being approved, whether they have been notified to the Registry; to verify that the reasons why the usufruct of the land was given to the tenant still exist; and to check whether the land is duly used. A lack of compliance by the tenant may result in the revocation of the authorization to possess the land. In the case of small owners their titles can be revoked and considered as illegal tenants of the land.[31]

The Minister of Justice has the power to amend or declare void any entries made in this Registry.[32] The Minister can also revoke the entries made in this Registry in favor of non-owner tenants.

In comparing this Registry with the old Registry of Property, a Cuban author admitted that the latter was essentially a registry of real property rights, being mainly a legal rights registry but divorced from the economic and physical aspects which are the most relevant aspects in the new Registry.[33]

B. The Registry of Property of Housing and Unimproved Lots

At the beginning of this paper we stated that the provisions of the Law of Urban Reform of 1960 and of Law No. 1180 of 1965 regarding recordation in the Registry of Property and the creation of an Urban section in the Registries of Property were never enforced.

Chapter IX of Law No. 48 of 1984 provided for the creation of a Registry of Property of Housing to record the transfer of urban property. Such creation was conditioned to the issuance of regulations which would be dictated for the compliance of said chapters, something that never happened.

This 1984 General Law of Housing was abrogated in 1989 by a new Law numbered 65.[34] This law ratified the creation of the Registry of Property of Housing and unimproved lots but, again, the regulations necessary for the operation of the Registry[35] have not been promulgated.

A Cuban jurist and high officer of the government said that this Registry would not resemble the old Registry of Property because its purpose is not to guarantee the ownership of urban land, which is protected by the mere fact that the owner occupies it, lives "in it but not from it", this phrase meaning that he uses the land for the only purpose of living in it but not to obtain a rent from it. The goal -he adds- is only to guarantee [the accuracy] of the information [gathered by the government].

Another Cuban author praises the active nature of this Registry which is run by of the Municipal directions or branches of the National Housing Institute whose powers include the issuance of norms for the distribution, acquisition, use, maintenance, reparation and reconstruction of housing, the additions and constructions of new housing, including the assignment of unimproved lots, the control of the Housing Fund and the establishment and control of the urban and rural settlements.[36] The control of housing through the municipal branches of this Institute is such that it has authority to declare illegal the occupancy of a house and removing the illegal occupants back to their former house;[37] this is just an example of its ample powers not only on houses and lots but also on the persons of the tenants.

The powers of the Registrar include the authority to amend the measurements and boundaries of the land on which the houses are built.

C. Other Land Registries

A National Cadastre, meaning a registry of parcel plans and mapping which pre-existed the Revolutionary Government has acquired a great relevance in the Castro Regime which spent large sums of money on it. The National Cadastre operated under the control of the Revolutionary Armed Forces after the Institute which used to run it was dissolved.[38] In 1967 a Cuban Institute of Cartography and Geodesy was created to operate under the control of the Ministry of Armed Forces.[39] A National Commission of Cadastre was created in 1977.[40]

The real properties which are not dedicated to agriculture and cattle raising and the urban properties which are not dedicated to housing but, in one and the other cases, are used by the government for enterprises like commerce and industry or for public services or occupied by political and community ("de masas") entities, are recorded in a Registry of Real Property Basic Means ("medios básicos").[41]

There is also a National Registry of Cultural Properties.[42] A Registry of National Monuments and Registries of Local Monuments[43] has also been created.

Legal Changes in the Area of Labor Relations

Efrén Córdova, Florida International University, Miami, Florida.

I. The Present System

Aby discussions of the labor law and labor relations problems that may arise in Castro's Cuba, should begin by defining the nature of the existing industrial relations systems. Unitl two years ago, that definition was a relatively simple one: the Cuban system was a prime example, or perhaps as I have argued on other occsions, an exacerbated version of the Stalinist model. This characterization is still valid for 95 percent of economic activities, but coexists now with another completely different system applicable to the tourist industry and a few other sectors of the economy. Reference will be made first in this paper to the main system and some information will be given at the end about the other less important regulations.

According to the Stalinist model, the actors of industrial relations, i.e. the employers and the workers organizations, lose their autonomy and become entirely subordinated to the State and the communist party. Employers are nothing more than subservient bureaucrats who adhere to government policies and follow the instructions of the planning agency. Labor unions are deprived of the right to draw up their by laws and programs of action and become organs of the state and transmission belts of the communist party.

Other features of the Stalinist model are:

I. Work is right, a duty and a source of pride for every citizen.

ii.Non-paid voluntary work for the benefit of society is regarded as an important element of the system.

iii. Brigades, micro-brigades, and other forms of militarizing labor are widely used.

iv.Self-employment is looked upon with disapproval as all production efforts are supposed to be carried out for the government.

vWorkers are constantly subjected to an intensive system of social mobilization intended to maintain the "heroic" tempo of the revolution.

vi.Strikes are prohibited and free and voluntary collective bargaining dissappears.

The Cuban system embodies all these essential elements of the Stalinist Model and adds a few other features aimed at further strenghening the totalitarian character of the regime. Voluntary work was elevated to the category of a constitutional principle and its practice has been much more widespread under Castro than under Stalin. The latter praised stakhanovites and encouraged other workers to follow their example. In Cuba two-thirds of the labor force participated in the 1989 voluntary work celebration of the Bolshevik Revolution, a remarkable record of participation in a non-paid labor exercise. It seems needles to add that to secure such a record unions are mandated ny the party to guarantee a certain quota of voluntary work and to press the workers to do it under the threat of losing their prospects of promotion, transfer or new employment as well as the vouchers or certificates that enable them to acquire certain consumer goods.

Varios kind of forced labor have been instituted, including the Vagrancy Law, the use of military conscripts to perform economic tasks, the use of prison labor and the compulsory combination of production work and studies at all levels of education.

In recent years, both the pseudo-voluntary work and the massive use of forced labor have been geared towards the food program, agricultural mobilizations and the digging of so-called "people's tunnels."

Self-employment was considered as an illegal activity punishable by the State. The Fourth Congress of the Cuban Communist Party (PCC) authorized certain forms of self-employment related to minor services, but ratified the PCC's opposition to all other forms of working of oneself including the free peasants markets that had thrived in the early 1980's. However, in September 1993 the government authorized self-employment in a specific list of activities, which was later considerably shortened.

The militarization of labor has grown beyond brigades and micro-brigades to encompass contingents, rapid squads for the defense of the revolution, workers' guards, workers' militias and growing use of military methods in the production process, particularly of the sugar industry.

Although Castro has kept the support of sizeable portions of the labor force, there is no doubt that the number of disgruntled workers has increased at a rapid pace over the last two years. To hold in check that part of the population opposed to the regime, Castro has stiffened the disciplinary measures and substantially enlarged the system of penalties. There is probably no other country in the world in which the number of disciplinary measures is as lengthy and harsh as the list contained in the Cuban Labor Code of 1984, the sectoral disciplinary codes, and the recent "Ley de Organos de Base de Justicia Laboral" (1992)

Equally stringent are the provisions concerning conditions of work. The practice of extending working hours has been constant throughout the 34 years of revolution. Using sometimes the socialist emulation system, invoking on other occasions the need for compulsory overtime without extra pay or relying on the frequent exhortations of the "Maximum Leader," Cuban workers are frequently obliged to work 10, 12 or 14 hours a day. In glaring violation of the 8-hour work-day enshrined in the Constitution and in international conventions. On January 25, 1993, the Secretary General of the Cuban Confederation of Workers (CTC) mentioned workers who labor 18 hours as an example to be followed. One month later, the Minister for the Sugar Industry spoke of the need to work 14 or 16 hours in order to save the 1993 harvest. For undernourished and exhausted workers, these are indeed intolerable burdens which were added to the other duties regarding their respective mass organizations, the rites and ceremonies of the revolution, military exercises and militia activities.

Cuban workers and people in general, including children belonging to the Pioneers Union, have few choices left other than complying with the government's requests. Castro has stepped up all sorts of repressive mechanisms, thus perfecting the totalitarian nature of the Stalinist model. Using the school record, the labor record ("expediente laboral") and neighborhood records (the reports of the Committees for the Defense of the Revolution), the government keeps track of the ideological attitudes of people and forces upon them the most adverse working and living conditions. The quid-pro-quo is represented by the social safety net that until recently guaranteed a social salary, education, health care and retirement benefits.

Various forms of discrimination are also used to punish those who do not conform to the government line. There is discrimination in employment and promotion, discrimination in access to housing and consumer goods, discrimination in the authorizations to travel abroad and discrimination against those who apply for emigration. Together with the constant harassment of dissidents and advocates of human rights, all this represents an all-out effort to control the minds and activities of the people.

In the area of collective labor relations, the Cuban government has suppressed all recent attempts to create independent unions. Leaders and organizers of those unions (CGTC, CSTC and CGTCI) have been persecuted, intimidated, incarcerated or victimized by mobs of Castro's followers. While in other Socialist countries, labor acquire a semblance of self/contro, in Cuba the by-laws of the CTC state that the labor movement, deliberately recognizes the commanding role of the communist party and indicates that the PCC is "The Vanguard and Supreme Organization of the Working Class". More than in any other Socialist country, Cuban labor unions have turned into emasculated mass organizations devoted to the promotion of labor discipline, socialist emulation, voluntary work, and the personality cult of Castro. Though they may conclude labor agreements with managers of state enterprises, they are unable to negotiate the contents of those agreements, whose main purpose is to secure the fulfillment of the productions quotas fixed by the planning agency. While there have been some cases of sabotage and worker resistance is widespread, no union has ever been able to declare a strike, nor have they ever dare to express disagreement with government policies.

The paragraph above contain a sketchy description of present-day labor relations in Cuba, a description that interested participants can read with more details in two recent books written by the author of this paper. The labor relations system thus described applies to the vast majority of economic activities in Cuba since many years ago; in fact, since the inception of the Stalinst Model. As mentioned earlier, there are however some sectors of economic activities, chiefly represented by the tourist industry and some joint (government-foreign capitalist) ventures in the textile, oil and transportation industries for which the Castro regime has enacted a different system specifically designed to entice foreign investors. The new approach started in 1982 with Decree Law 50, followed by Decree 122 of 1990, applicable to the tourist industry. Ironically, some aspects of this particular system can be regarded as neo-liberal in character and perhaps more favorable to business than most of the other neo-liberal schemes proposed in market economies. There are, for instance, provisions on flexibilization and deregulation, controversial issues indeed which are now hotly constested by unions in many countries. Example of these provisions are the facilities granted to foreign investors to use different kinds of employment contracts, to exert strict control on the personnel, to ease regulations concerning termination of emplyment, to repatriate profits, to bring their own middle and high level management and to free such firms from the risk of having to deal with aggressive, militant unions. Castro's officials figured that these concessions, together with the low level of wages prevailing in the island and the guarantee that no authorization will be given to form independent unions, will be enough to attract the Canadian, Mexican, Spanish, French and other investors interested in doing business with Cuba.

II. The Future Legal Framework

This duality approaches - the Castro Stalinist and the Castro neo-liberal- poses some legal problems for the reentry of U.S. based business into Cuba. While the Castro Stalinist System governing labor-management relations should be entirely dismantled and replaced by a labor legislation suitable to a democratic society, the neo-liberal benefits already granted to foreign investors may deserve a different treatment. It is clear that none of these benefits should be regarded as privileges exclusively reserved to corporations that were willing to collaborate with the Castro regime. If there are, however, elements of flexibilization which may be deemed appropriate for the revival of the Cuban economy, those elements shoudl be granted to all foreign investors on equal footing and not only to the beneficiaries of Castro's largesse. Moreover, both the enacted legislation regarding joint ventures and the statutes governing the tourist industry should be thoroughly revised as they include certain provisions which are unfair or excessively rigorous as regards to treatments of Cuban workers. Flexibility with respect to the typology of employment contracts and in connection with the valid causes for dismissals, including reasons connected with the economic and technical requirements of the firm, might be retained, but hours of work, minimum wages, safety and health, freedom of association, voluntary collective bargaining and the right to strike, must be recognized and regulated in the light of what are now internationally recognized fair labor standards. It may be recalled in this connection that this is at least what the U.S. government has been doing since 1974-1984 through its generalized system of commercial preferences.