The restoration of the 1940 Constitution in Cuba would result in the immediate legal consequence of the automatic release of all political prisoners in the country, as explained by attorney Reimel Ariosa from the Gouper team, with offices in Valencia and the United States, in an interview with CiberCuba.
The central argument of Ariosa is that the offenses for which the regime has imprisoned opponents, activists, and citizens for 67 years simply did not exist in the Social Defense Code in effect in 1940.
"Basically, all political prisoners who have been incarcerated for crimes organized by the Communist Party over the past 67 years in Cuba would be automatically released, because those crimes were not recognized in the Social Defense Code," the lawyer stated.
Ariosa also points out that the current Cuban penal system exhibits serious distortions compared to the framework of 1940: "Often, for stealing something trivial, people receive more years in prison than for committing a more serious crime, which in a normal and healthy society would have a harsher penalty and was treated differently in 1940."
That disparity would necessitate a review of sentences for common crimes as well.
Regarding the process, the lawyer clarifies that "the criminal aspect would be resolved relatively automatically," although he notes that case-by-case supervision would be necessary to ensure proper implementation.
The legal resolution, in any case, would take effect immediately upon the restoration of the constitutional framework.
The effect would not be limited to the criminal realm. Ariosa argues that "the entire manner of establishing companies, all the companies that existed then and were illegally confiscated by communism, would be automatically reversed in formal and legal terms."
It would then be up to the transitional government to give real substance to that reversal.
Regarding that transitional government, the lawyer issues a warning that he deems essential: lacking democratic election, it would have no mandate to define fiscal policy, criminal policy, or the ordinary functioning of the country.
"The transition is not a democratically elected government, and this implies that the government cannot determine how fiscal policy will be in Cuba, how criminal policy will be in Cuba, or how the ordinary functioning of a country will be. It lacks the representative mandate to do so," he emphasized.
Its role would be limited to preparing the ground for the first free elections: "We must be clear that its only responsibilities are to adapt today's dire Cuban reality to how it must behave to hold the first [elections]."
Ariosa's proposal is part of a debate that has gained particular intensity in 2026. On June 1, organizations from the historical exile unanimously agreed in Miami to adopt the 1940 Constitution as a legal foundation for the future of Cuba.
Figures like Armando Valladares argue that this text was never validly repealed and can be applied immediately.
The urgency of the debate is underscored by the figures: according to Prisoners Defenders, Cuba ended May 2026 with 1,281 political prisoners, with a total of 2,076 political detainees since the protests on July 11, 2021.
The Presidential Decree 1212 of the regime pardoned 2,010 sanctioned individuals that year, but explicitly excluded those convicted of "crimes against authority" —the category used to imprison opponents— with only two political prisoners recognized on the list.
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