Judicial Power- Constitution of Cuba 1940
Judicial Power - The Constitution of Republic of Cuba 1940. Cuban Laws and Constitutions.
|Title XIV Concerning the Judicial Power
FIRST SECTION General Provisions
|Article 170. Justice is administered in the name of the people, and its dispensation shall be free throughout the national territory.
Judges and prosecutors are independent in the exercise of their functions and owe no obedience except to the law.
Justice may be administered only by persons who permanently belong to the Judiciary. No member of this branch may exercise any other profession
The registries of civil status are in charge of members of the Judiciary.
|Article 171. The judicial power is exercised by the Supreme Tribunal of Justice, the superior electoral tribunal, and the other tribunals and courts that the law may establish. The law shall regulate the organization of the tribunals, their powers, the means of exercising them, and the qualifications required of the officials who compose them.
SECOND SECTION Concerning the Supreme Tribunal of Justice
|Article 172. The Supreme Tribunal of Justice shall be composed of the chambers that the law may determine.
One of these chambers shall constitute the tribunal of constitutional and social guarantees. Upon recognition that constitutional matters are involved, the president of the Supreme Tribunal shall necessarily preside, and the tribunal itself shall be composed of not less than fifteen Magistrates. When social matters are involved it shall be composed of not less than nine Magistrates.
|Article 173. To be president or a Magistrate of the Supreme Tribunal of Justice it is necessary:
1st. To be Cuban by birth.
2nd. To have reached forty years of age.
3rd. To be in full enjoyment of civil and political rights, and never to have been sentenced to corporal punishment for a common crime.
4th. To meet, in addition, any of the following qualifications:
To have practiced the profession of law in Cuba for at least ten years, or to have discharged judicial or prosecuting functions for an equal time, or to have held, for the same number of years, a professorship of law in an official institution of learning.
For the purposes of the preceding paragraph, the periods in which the appointees for president or Magistrate of the Supreme Tribunal of Justice may have practiced the profession of law and exercised judicial or prosecuting functions may be added together.
|Article 174. The Supreme Tribunal of Justice, in addition to the other powers and duties that this Constitution and the law stipulate, shall have the following:
1st. To accept jurisdiction over appeals in cessation.
2nd. To adjust questions of competence between tribunals that are immediately inferior, or that do not have a common superior, and questions that may arise between the judicial authorities and other kinds of authorities of the State, Province, and municipality.
3rd. To accept jurisdiction over verdicts that the State, Provinces, and municipalities may contest among themselves.
4th. To decide upon the constitutionality of the laws, decree-laws, decrees, regulations, agreements, orders, provisions, and other acts of any other agency, authority, or official.
5th. To decide, in final instance, upon suspension or removal from office of local and provincial officials, in conformity with what is provided by this Constitution and the law.
|Article 175. The judicial career is instituted. Entry into the same shall be made by means of competitive examinations except in the case of Magistrates of the Supreme Tribunal.|
|Article 176. In the appointment of magistrates of the provincial supreme court, three procedures shall be observed: the first, the concept of promotion by strict seniority from the tower category; the second, by means of a competitive examination among those who occupy the immediately inferior category; and third, by means of practical and theoretical competitive examinations given to persons able to compete, judicial officials, and public attorneys, as well as lawyers not over sixty years of age. Practicing lawyers must meet the same requirements as are necessary for being appointed Magistrates of the Supreme Tribunal.|
|Article 177. Appointment of judges shall be made upon two procedures: one, by strict seniority in the lower category, and the other by competitive examination in which officials of the same and of the lower category may take part. In the first procedure to which this article and the preceding one refer, the vacancy shall be filled a transfer, if there should be an official in an equivalent category who applies for the position, reserving entry or promotion for positions that definitely remain available in the category.|
|Article 178. The chamber of government of the Supreme Tribunal shall determine, classify, and publish the merits to which the judicial officials of each category are entitled toward their turn for promotion.|
|Article 179. In cases of competitive examination, the transfers and promotions shall necessarily be granted to the official who applies for the position and who is in the same category or the one immediately inferior, and who obtains the best grade. The Supreme Tribunal shall establish the standard of grading by categories, verifying the said grading semi-annually with exclusive consideration of the ability, judgment, merit, and judicial activity of each individual.|
|Article 180. Magistrates of the Supreme Tribunal shall be appointed by the President of the Republic from a panel proposed by an electoral college of nine members. These shall be designated: four by the plenum of the Supreme Tribunal from its own body, three by the President of the Republic, and two by the faculty of law of the University of Havana. The last five must meet the qualifications required of Magistrates of the Supreme Tribunal, and those designated by the faculty of law may not belong to the same.
The electoral college is formed for each designation, and its members who are not Magistrates may not again be made a part of this body until four years have elapsed.
The president of the Supreme Tribunal and the presidents of a chamber shall be appointed by the President of the Republic, on the proposal of the plenum of the Tribunal. These appointments and those of the Magistrates of the Supreme Tribunal must receive the approval of the Senate.
The panel to which the first paragraph of this article refers shall include at least one judicial official in active service who has discharged these duties for a minimum period of ten years, if there be such an official.
|Article 181. The appointments, promotions, transfers, exchanges, suspensions, corrections, pensioning, leaves of absence, and abolition of positions shall be made by a special chamber of government composed of the president of the Supreme Tribunal and of six members of the same, annually elected among the presidents of the chamber and Magistrates of the said Tribunal.
No person may be a part of this chamber of government for two successive years.
All newly created positions shall include compensations in conformity with the provisions of this Constitution.
The regulatory powers, as far as concerns the internal order of the tribunals, shall be exercised by the chamber of government of the Supreme Tribunal of Justice, in accordance with the provisions of the organic law of the Judiciary.
THIRD SECTION Concerning the Tribunal of Constitutional and Social Guarantees
|Article 182. The tribunal of constitutional and social guarantees is competent to accept jurisdiction in the following matters:
1st. Appeals of unconstitutionality against laws, decree-laws, decrees, resolutions, or acts that may deny, diminish, restrict, or violate the rights and guarantees embodies] in this Constitution, or that may impede the free functioning of the organs of State.
2nd. Advisory opinions sought by judges and tribunals upon the constitutionality of laws, decree-laws, and other provisions that they may have to apply in trials.
3rd. The recourse of habeas corpus, by way of appeal, or when the claim has been unsuccessful before other authorities or tribunals.
4th. The validity of proceedings and of constitutional amendment.
5th. Juridical-political questions and those of social legislation that the Constitution and the law may submit for its consideration.
6th. Appeals against abuses of power.
|Article 183. The following may appeal to the tribunal of constitutional and social guarantees without the necessity of posting a bond:
1st. The President of the Republic, the president and any one of the members of the Council of Government, the Senate, the Chamber of Representatives, the tribunal of accounts, the governors, mayors, and councilors.
2nd. Judges and tribunals.
3rd. The Ministry of Justice.
4th. The universities.
5th. The autonomous departments authorized by the Constitution or the law.
6th. All persons individually or collectively who may have been affected by an act or provision that they consider unconstitutional.
Persons not included in any of the preceding clauses may also appeal to the tribunal of constitutional and social guarantees, provided that they post the bond that the law may indicate.
The law shall establish the manner in which the tribunal of constitutional and social guarantees shall function, and the procedure for submission of evidence on appeals made before the same.
FOURTH SECTION Concerning the Superior Electoral Tribunal
|Article 184. The superior electoral tribunal shall be composed of three Magistrates of the Supreme Tribunal of Justice, and two of the provincial supreme court of Havana, appointed for a term of four years by the plenums of their respective tribunals.
The presidency of the superior electoral tribunal shall be held by the oldest of the three Magistrates from the Supreme Tribunal. Each one of the members of the tribunal shall have two alternates appointed by the body from which he comes.
|Article 185. In addition to the powers that the electoral laws may confer upon it, the superior electoral tribunal is invested with full powers for guaranteeing the integrity of suffrage, controlling and intervening as it may consider necessary in all the census enumerations, elections, and other electoral acts; in the formation and organization of new parties, reorganization of existing ones, nomination of candidates, and proclamation of those elected.
It shall also have power:
1st. To decide upon electoral claims that the law may submit to its jurisdiction and competence.
2nd. To enact general and special instructions necessary for the fulfillment of electoral legislation.
3rd. To determine, in case of appeal, the procedure required for establishing the validity or nullity of an election and the proclamation of candidates.
4th. To enact mandatory instructions and provisions for the armed forces and police for the maintenance of order and electoral freedom during the period of census enumeration, of organization and reorganization of parties, and during the interim between the call for elections ant! the conclusion of the verification of the vote.
In case of grave disturbance of public order, or when the tribunal considers that there do not exist sufficient guarantees, it may order the suspension or nullification of all electoral acts and operations in the territory affected, although constitutional guarantees are not suspended.
|Article 186. The law shall organize the electoral tribunals. In order to form them, the law may require the services of judicial officers.
Jurisdiction over electoral complaints is reserved to electoral tribunals. Nevertheless, the law shall determine the matters in which, as exceptions, appeals may be taken from the decisions of the superior electoral tribunal to the tribunal of constitutional and social guarantees.
|Article 187. The administrative tenure of electoral employees and officials, subordinate to the supreme jurisdiction of the superior electoral tribunal, is established, and the permanent employees of the electoral councils are declared irremovable.
The compensation fixed for these permanent officials and employees by the electoral code may not be altered, except under conditions and Irrupt established for judicial officials and employees. The law may not assign different salaries to positions of equal rank, category. and function.
FIFTH SECTION Concerning the Ministry of Justice
|Article 188. The Ministry of Justice represents the people in the administration of justice, and its basic purpose is to supervise compliance with the Constitution and the law. The officials of the Ministry of Justice shall be irremovable and independent in their functions, with the exception of the prosecuting attorney of the Supreme Tribunal, who shall be appointed and may be removed freely by the President of the Republic.|
|Article 189. Entrance into the prosecuting career shall be by means of competitive examination, and promotion shall be effected in the form that this Constitution establishes for judges. Appointments, including those to newly created positions, promotions, transfers, suspensions, readjustments, leaves of absence, removals, and pensioning of officials of the Ministry of Justice, and approval of their exchange or resignation, shall be made in accordance with the provisions of the law.|
|Article 190. The prosecuting attorney of the Supreme Tribunal of Justice shall meet the qualifications required of Magistrates of the Supreme Tribunal; the assistant attorneys of the same Tribunal, and the prosecutors of the other tribunals, must be Cuban by birth, must have reached thirty years of age, ant! must be in full enjoyment of civil and political rights. The other officials of the Ministry of Justice shall meet the qualifications that the law may stipulate.|
|Article 191. When the Government is involved in or is a party to any proceedings, the interests of the Government shall be represented by State attorneys, who shall constitute a body, the organization and functioning of which shall be regulated by law.
SIXTH SECTION Concerning the Superior Council of Social Defense and the Tribunals for Minors
|Article 192. There shall be a superior council of social defense which shall be in charge of the execution of penalties and measures of security that involve the deprivation or limitation of individual liberty, as well as the organization, direction, and administration of all establishments or institutions that may be required for the most effective prevention and suppression of crime.
This body, which shall enjoy autonomy for the exercise of its technical and administrative functions, shall also have in its charge the concession and revocation of conditional freedom, in accordance with the law.
|Article 193. Tribunals for minors are established.
The law shall regulate their organization and functioning.
SEVENTH SECTION Concerning Unconstitutionality
|Article 194. A declaration of unconstitutionality may be sought:
1st. By the interested parties in trials, suits, or businesses in which ordinary or special Jurisdiction is accepted.
2nd. By twenty-five qualified citizens.
3rd. By the person affected by the provision deemed unconstitutional.
The judges and tribunals are obliged to decide conflicts between the laws in force and the Constitution, following the principle that the latter shall always prevail over the former.
When a judge or tribunal considers any law, decree-law, decree, or provision inapplicable because he deems that it violates the Constitution, he shall suspend the proceedings and submit the matter to the tribunal of constitutional and social guarantees for the purpose of asserting or denying the constitutionality of the provision in question and shall return the matter to the lower court to continue the proceedings, issuing the measures of safeguard that may be pertinent to the case.
In administrative procedure, the question of unconstitutionality may be raised when litigious administrative problems are involved. If the laws do not provide such recourse, the appeal of unconstitutionality may be raised directly against the administrative decision.
The appeal of unconstitutionality in the cases enumerated in Articles 131, 174, 182, and 186 of this Constitution shall be placed directly before the tribunal of constitutional and social guarantees.
In all appeals of unconstitutionality the tribunals shall always decide the validity of the claim. If the appeal should suffer from any defect of form, the said tribunals shall grant a time for the party making the appeal to correct such defects.
No law, decree-law, decree, regulation, order, provision, or measure that has been declared unconstitutional may be applied in any case or form, under penalty of disqualification from the exercise of public office.
The verdict in which the unconstitutionality of a legal precept or measure, or administrative resolution, is declared, shall obligate the body, authority, or official which may have enacted the annulled provision to repeal it immediately.
In all cases the legislative or regulatory provision or governmental measure declared unconstitutional shall be considered null and without force and elect from the date of publication of the verdict in the chambers of the tribunal.
|Article 195. The Supreme Tribunal and the tribunal of constitutional and social guarantees are obliged to publish their verdicts in the proper official periodical without delay.
A sum shall be fixed annually in the budget of the Judiciary for defraying the expense of such publication.
EIGHTH SECTION Concerning jurisdiction and Irremovability
|Article 196. The ordinary tribunals shall have jurisdiction over all trials. suits, or businesses, whatever may be the jurisdiction to which they belong. with the sole exception of cases of military crimes or acts occurring in the service of the armed forces, which shall be submitted to military jurisdiction.
Upon commission of such crime jointly by soldiers and persons not enjoying immunity, or when one of the latter is a victim of the crime, the case shall fall within ordinary jurisdiction.
|Article 197. In no case may tribunals, commissions, or bodies be created to which special competence is granted for accepting jurisdiction over acts, proceedings, suits, contingencies, questions, or businesses assigned to the jurisdiction of the ordinary tribunals.|
|Article 198. The tribunals of the naval and land forces shall be governed by a special organic law and shall have jurisdiction only over strictly military crimes committed by the members of said forces. In case of war or grave disturbance of public order, military jurisdiction shall extend over all crimes and offenses committed by soldiers in the territory in which the state of war actually exists, in accordance with the law.|
|Article 199. The civil and criminal responsibility that judges, magistrates, and public attorneys may incur in the exercise of their functions' or by reason of said functions, shall be subject to accounting before the Supreme Tribunal of Justice.|
|Article 200. Judicial officials and those of the Ministry of Justice, public defenders, as well as their assistants and deputies, are irremovable. By virtue of this, said officials may not be suspended or separated except for reason of crime or other duly accredited grave cause, and always after a hearing of the accused. These officials may be suspended from the exercise of their functions at any stage of the proceedings.
A judge, magistrate, prosecutor, or court attorney, when prosecuted in a criminal case, shall be immediately suspended from the exercise of his functions.
The transfer of judges, magistrates, prosecutors, or court attorneys may not be effected except by means of a corrective disciplinary procedure, or for the reasons of public convenience that the law may establish. However, officials of the Ministry of Justice may be transferred in cases of vacancy, if they so request.
|Article 201. The offices of secretaries and assistants of the administration of justice shall be allotted according to the alternative systems of transfers and promotions by seniority or merit, the latter being determined by competitive examination in the form that the law may fix, and in accordance with the personnel list that the chamber of government of the Supreme Tribunal of Justice shall draw up and publish.|
|Article 202. The law shall establish the grounds for punishment, transfer, and removal, as well as the procedure for the respective measures.|
|Article 203. Compliance with judicial decisions is mandatory. The law shall establish the guarantees necessary for making these decisions effective in case authorities, officials, employees of the State, Province, or municipality, or members of the armed forces should resist them.|
|Article 204. Sentences pronounced by correctional judges in cases of crime may be appealed before the tribunal that the law may determine and under proceedings regulated by law.|
|Article 205. The Government has no power to declare a binding decision of the tribunals prejudicial. In case the Government is unable to enforce the decision, it shall indemnify the injured party in the proper manner, requesting the Congress to appropriate the necessary funds, if they are not on hand.|
|Article 206. The salaries of officials and employees of the administration of justice, of the Ministry of Justice, and the permanent officials and employees of the electoral bodies may not be altered except by a vote of two-thirds of each one of the colegislative bodies, arid at periods of not less than five years.
Different salaries may not be established for offices of equal rank, category, and function.
The salaries assigned to Magistrates of the Supreme Tribunal of Justice, and to the other officials of the Judiciary, must in al! cases be adequate to the importance and far-reaching consequences of their functions.
|Article 207. No member of the Judiciary may be a Minister of Government or discharge any function assigned to the legislative or executive branches, except as a member of a commission designated by the Senate or the Chamber of Representatives for the revision of laws. Members of the Judiciary likewise may not stand as candidates for any elective once.|
|Article 208. Criminal responsibility of the president, the presidents of the chamber, and Magistrates of the Supreme Tribunal of Justice, and the grounds for their removal from office, shall be established according to the following procedure:
The Senate of the Republic shall be competent to accept jurisdiction of charges against the said officials. On receipt of charges, the Senate shall appoint a committee to study them and the committee shall then submit its findings to the Senate. If the Senate, by a vote of two-thirds of its members, cast by secret ballot, considers the charges well founded, the proper proceedings shall be opened before a tribunal that shall be called the grand jury, composed of fifteen members, appointed in the following manner:
The president of the Supreme Tribunal shall send to the president of the Senate the complete list of the members of that body not affected by the accusation.
The president of the Chamber of Representatives shall send to the president of the Senate the list of members of the Chamber of Representatives.
The rector of the University of Havana shall send to the president of the Senate the complete list of titular professors of the faculty of law.
The President of the Republic shall send to the president of the Senate a list of fifty lawyers, chosen freely by him, who meet the qualifications required for Magistrates of the Supreme Tribunal.
On receipt of these lists by the president of the Senate, the latter, in public session of the said body, shall proceed to select the members of the grand jury by ballot:
Six from the Supreme Tribunal of Justice. In default of said number, this group shall be completed by the same procedure from a list including the president and the magistrates of the provincial supreme court of Havana, sent to the president of the Senate by the president of said provincial supreme court.
Three members from the Chamber of Representatives.
Three members from the faculty of law of the University of Havana; and,
Three members from the list of fifty lawyers.
The judicial official of the highest rank shall preside over this tribunal, and in his absence, the oldest member present shall so preside.
The Senate, after having once designated the grand jury, shall forward the charges to the latter for judicial proceedings. After sentence is pronounced, the grand jury shall be dissolved.
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|Suffrage and Public Offices|
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| Amendment of the Constitution
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