BY JOSÉ MANUEL PINTO MONTEIRO
The Defence Team of Venezuelan diplomat Alex Saab has twice submitted requests addressed to the Honourable Minister of Justice Joana Gomes Rosa Amado asking the Minister to cancel order No. 100/200 of 2 July 2020 (“the Order”) that authorized Alex Saab’s extradition to the United States.
These requests were made on 13 and 23 September 2021 and brought to the attention of the Honourable Minister the significant new developments since the Order was originally signed:
a. The significant deterioration of Alex Saab’s health. The deterioration of Alex Saab has been recognized by the by the Barlavento Court of Appeal, which, on 31 August 2021 ordered his transfer him Sal to Praia so that he can receive better medical care in keeping with his needs as a cancer patient.
b. The ending of investigation against Alex Saab in Switzerland. The Geneva Public Prosecutor earlier this year ended a three-year investigation into allegations of money laundering against Alex Saab, after concluding that there was no evidence to support the allegations. The ending of the investigation and the fact the payment of compensation to Alex Saab amount to an acquittal on the charges under Swiss Law.
It was brought to the attention of the Honourable Minister that a substantial amount of the funds received into Switzerland were from companies linked to the same Venezuelan social housing programme which is at the heart of the Miami indictment issued against Alex Saab on 25 July 2019 and serves as the basis for the extradition request from the United States.
Therefore, the “Ne Bis In Idem” principle is violated which is enshrined in Article 31 (5) of the Constitution of Cabo Verde, and states that no one can be tried twice for the commission of the same alleged crime is being encroached upon.
c. The U.S. still has no jurisdiction to prosecute Alex Saab – Since April 2018 Alex Saab has been a Special Envoy of the Bolivarian Republic of Venezuela, and since December 2020, he has been Venezuela’s Alternate Permanent Representative to the African Union. On 6 August 2021, the United States Court of Appeals for the 11th Circuit issued a decision stating that the question of Alex Saab’s entitlement to diplomatic immunity is to be decided on the merits. If the Court of Appeals for the 11th Circuit finds that Alex Saab is indeed entitled to diplomatic immunity, the whole case against Alex Saab falls away, which in turn would mean there could be no extradition.
The Honorable Minister of Justice responded to the above defense requests with two identical letters on 22 September and 1 October, with the following reasoning: “on that date, pursuant to the provisions of Articles 48 and 50 of Law No. 6 / VIII / 2011, dated 29 August, the administrative proceeding ended, passing to the judicial proceeding.
This is why, considering the decision by the Government of Cape Verde and taking into account the provisions of the aforementioned Law, currently, no other decision by the member of the Government responsible for the area of Justice is appropriate.”
Such replies are administrative acts – and in accordance with the Cape Verdean legislation administrative acts must be sufficiently substantiated and clear. In addition, the Honorable Minister of Justice violated a fundamental principle of administrative activity, which provides that administrative bodies are obliged to pronounce on all matters within their competence that are presented to them by individuals, whereas in this case the replies provided by the Honorable Minister of Justice cannot remotely constitute a true and complete explanation and certainly did not show any attempt had been made to understand and take on board the new information brought to the attention of the Honorable Minster.
Furthermore, according to the decisions of the Supreme Court of Justice and the Constitutional Court, the question of recognising Alex Saab's diplomatic immunity can only be decided by the executive branch, not the Cabo Verdean courts.
In view of the foregoing, on 1 October 2021, the Defense Team lodged a formal complaint before the Honorable Minister of Justice in which they seek thorough reasoned replies since under the Cabo Verdean laws such administrative acts must be sufficiently substantiated.
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