Courts of limited jurisdiction in a post-transition Cuba.

• Author: Travieso-Diaz, Matias F.

ABSTRACT

Cuba's eventual transition to a free-market society will likely be accompanied by a flood of litigation in areas such as property rights, privatization of state-owned enterprises, and human rights violation claims. Courts of limited jurisdiction should be established to hear these specialized matters and alleviate the burden on regular courts. As the transition unfolds, there will also be a need to create specialized tribunals to handle disputes in areas such as taxation, bankrtupcy, and intellectual property. The creation of the various courts of limited jurisdiction will have to be supported by creative strategies for retraining existing judges, training new ones, and supplementing the bench through the appropriate use of nonjudicial personnel.

TABLE OF CONTENTS I. INTRODUCTION II. COURTS OF LIMITED JURISDICTION AND LIMITED DURATION A. Introduction B. Property Right Adjudication Courts C. Privatization Program Courts D. Handling of Human Rights Claims 1. Special Agency: The Ethiopian Special Prosecutor's Office 2. Special Agency Plus Limited Jurisdiction Court: Sierra Leone 3. Truth and Reconciliation Commissions: South Africa 4. Lessons for Cuba III. PERMANENT COURTS OF LIMITED JURISDICTION A. Introduction B. Tax Courts C. Bankruptcy Courts D. Intellectual Property Courts IV. STAFFING OF COURTS OF LIMITED JURISDICTION A. Introduction B. Training of Existing Judges 1. Short-Term Retraining 2. Continuing Legal Education a. Government versus Non-Government Sponsorship b. Teachers c. Mandatory versus Non-Mandatory CLE C. Training of New Judges D. Use of Non-Judicial Personnel in Courts of Limited Jurisdiction V. CONCLUSIONS AND RECOMMENDATIONS I. INTRODUCTION

Courts in the judicial system of a modern state have different levels of authority. Legal disputes are originally presented to "lower courts"; "higher courts" provide a means for reviewing the lower courts' decisions. Courts are also distinguished by their jurisdiction--that is, the subjects that a court may hear and decide or the parties who are subject to the court's power. A court's power to hear a case is dependent on whether it has both subject-matter and personal jurisdiction. Courts are classified as having one of two types of subject-matter jurisdiction: (1) general jurisdiction, which confers upon courts the power to hear all types of controversies or (2) special, or limited, jurisdiction, which confers upon courts the power to hear only certain types of cases. (1)

Judicial institutions may also exist within executive departments and other administrative agencies. Administrative tribunals and boards enforce proposed actions by the agencies against private parties and hear petitions by private parties seeking redress for such actions. In many legal systems, those seeking to appeal from actions by a governmental agency or department are required to pursue all available remedies within the agency before bringing an action in a court of general or limited jurisdiction or an appellate court.

Courts of limited jurisdiction exist in virtually all modern nations. (2) In the United States, for instance, the federal court system includes several important courts of limited jurisdiction, including the U.S. Tax Court, the U.S. Court of Federal Claims, the U.S. Court of International Trade, and the U.S. Court of Military Appeals. (3) Courts of limited jurisdiction exist in Spain (4) and in many Latin American countries, such as Mexico, (5) Chile, (6) Venezuela, (7) and Brazil. (8)

Cuba currently has a unified judicial system consisting of three levels of courts. (9) At the highest level is the People's Supreme Court, which is divided into six different chambers: (1) criminal, (2) civil and administrative, (3) labor, (4) state security, (5) military, and (6) economic. (10) The People's Supreme Court (Tribunal Supremo Popular) oversees the operation of the entire court system, but it lacks the power to review the actions of the executive and legislative branches. (11) The next level of courts is the People's Provincial Courts (Tribunales Provinciales Populares); one such court is located in each of the fourteen provinces. (12) The provincial courts have initial jurisdiction over major crimes and serve as courts of appeal for the third and lowest level of courts: the People's Municipal Courts (Tribunales Municipiales Populares). (13) The 169 municipal courts are the principal trial courts in the Cuban judicial system and have initial jurisdiction over civil and minor criminal matters. (14)

Other than the chambers into which the People's Supreme Court is divided, Cuba has no permanent courts of limited jurisdiction. The Cuban government, however, has established at various times (particularly in the first decade of the Revolution) ad hoc "people's courts" and "revolutionary tribunals," largely intended to replace regular courts and provide summary handling of certain matters, especially criminal proceedings against opponents of the regime. (15)

Setting up courts of limited jurisdiction will be a virtual necessity during the transition period in Cuba. Many lawsuits can be expected to be initiated during that period. Indeed, Cuba could experience a surge in litigation similar to those that occurred in other countries transitioning from socialism. (16) Unless measures are taken to expedite judicial proceedings, there could be lengthy delays in the adjudication of cases.

The growing caseload will likely require that temporary courts and other judicial institutions having limited jurisdiction be established during the early phase of the transition to handle some of the more frequently litigated matters (e.g., disputes involving property ownership issues). Courts of limited jurisdiction of a more permanent nature will also need to be created to hear cases where the subject matter is of a specialized nature (e.g., tax cases).

This Article seeks to identify some of the most important courts and quasi-judicial tribunals that will need to be established during Cuba's transition to a free market democracy. This Article does not intend to provide a comprehensive examination of judicial administration needs in a post-transition era. Rather, this Article seeks to illustrate the challenges that a transition government will face in providing an adequate legal infrastructure. (17)

2. COURTS OF LIMITED JURISDICTION AND LIMITED DURATION

   1. Introduction

      The transition period in Cuba will witness profound changes to the country's political, social, and economic structures. (18) Some of those changes--for example, the privatization of state-owned enterprises (SOE)--will be "one time only" initiatives that will be accomplished over a relatively short period of time, whereas others will be permanent modifications requiring the establishment of enduring structures for their implementation.

      This Part discusses those courts and quasi-judicial tribunals whose function will be to support the short term needs of the transition. Such courts and tribunals will of necessity have limited jurisdiction and will be disbanded once the special need requiring their institution has been accomplished.

   2. Property Right Adjudication Courts

      As is well known, during the early years of its Revolution, 1959-1963, Cuba expropriated the assets of foreign nationals in the country. (19) While Cuba has settled over time the expropriation claims of the nationals of several countries, (20) the most significant claims--those of corporations and individuals who were U.S. nationals at the time of the property seizures--remain outstanding and represent a very large potential liability for the state. Applying a six percent simple interest rate to the $1.8 billion principal in certified claims yields a present value for the expropriation claims by U.S. nationals of approximately $6.7 billion as of July 2005. (21)

      Resolution of the U.S. claims issue may not be practicable while the current socialist regime is in power in Cuba. Cuban officials have periodically expressed a willingness to discuss settlement of the claims issue with the United States; (22) however, such willingness is usually expressed in the context of setting off those claims against Cuba's alleged right to recover from the United States hundreds of billions of dollars in damages due to the U.S. trade embargo and other alleged acts of aggression against Cuba. (23) To date, the Cuban government has given no indication that it is prepared to negotiate, without preconditions, a potential settlement of the U.S. expropriation claims with the United States.

      For that reason, the expropriation claims of those who were U.S. nationals at the time their properties in Cuba were seized are likely to achieve resolution only after the country makes a transition to a free market society. The expropriation claims of those individuals and corporations who were Cuban nationals at the time their properties were taken also remain outstanding and are likely to greatly exceed the claims of the U.S. nationals in both number and amount.

      Many solutions have been proposed to address the pending expropriation claims. (24) All of the proposed solutions have in common the likely resort to the courts by, among others, individuals or entities asserting conflicting ownership claims against the same asset, claimants dissatisfied with the disposition given to their claims, and former property owners suing foreign investors who have conducted business utilizing or otherwise involving the expropriated assets during the current regime. (25)

      For example, one of the claim resolution mechanisms that commentators have supported is the restitution of the expropriated assets to their former owners. (26) Restitution methods have been used in a number of countries making the transition from socialism to a free market society. (27) Implementation of a restitution program, however, would almost inevitably lead to controversies among potential claimants to the property, (28) between...