Alex Saab’s Defence Team Submits Application for Nullity of the Cape Verde Constitutional Court’s Decision of 7 September 2021

Cabo Verde — Filing Seeks to Reverse Extradition Approval

The Defense Team of Venezuelan diplomat Alex Saab is clear that the decision of 7 September 2021, as supplemented by the decision on clarifications of 20 September 2021, of Constitutional Court of Cape Verde suffers for a number of flaws. For this reason, a submission has been made on 29 September to the Constitutional Court to seek a declaration that, as a result of these flaws, the decision of 7 September be altered and the case remanded to the Judicial courts.
It is the view of the Defence Team that, in its decision, the Constitutional Court has omitted a ruling on relevant constitutional issues that had been raised in Alex Saab’s constitutional appeal, incurred into contradictions between the reasons given in its judgment and the decision and went beyond the matters it could have decided. The Constitutional Court is therefore requested to examine the Defence’s arguments and issue a new judgment ruling on the nullities that were invoked in accordance with the provisions of Cape Verde Law.

Specifically, in its submission of 29 September, the Defence cited the following:

The Constitutional Court of Justice in its Judgment stated that Alex Saab, as a person whose extradition is sought, may not produce evidence concerning the facts indicted in the US. However, the Court omitted a decision on whether it was constitutional do deny him to produce evidence about other facts that are relevant to the decision in an extradition case (namely, concerning his diplomatic immunity, the existence of the jurisdiction of the requesting State, his health conditions, and the political motivation of his persecution). Therefore, the Constitutional Court has omitted a ruling on relevant constitutional issues that had been raised in Alex Saab’s constitutional appeal. It should therefore rule explicitly on the matter and, in doing so, grant the constitutional appeal, following the position of Justice Pina Delgado in his dissenting opinion, since the interpretation according to which there is no need to provide for hearings and production of evidence referred to any facts that do not fall into the facts the person is charges with in the Requesting state is incompatible with the right of defence, which extends from the guarantee to a fair trial.

– The Constitutional Court stated that the ruling of the Supreme Court according to which the criteria for recognizing Alex Saab’s diplomatic status was not met was not unconstitutional. The Constitutional Court, however, did not address the question, raised by the Defence, as to whether or not the Cape Verdean courts may recognize such diplomatic status without such recognition having been made by the executive branch of Cape Verde (which had been denied by the Supreme Court),.
The Constitutional Court has omitted a ruling on relevant constitutional issues that had been raised in Alex Saab’s constitutional appeal. It should therefore rule explicitly on the matter and, in doing so, grant the constitutional appeal.)

The Constitutional Court has exceeded its powers in declaring that a rule was unconstitutional, although such a rule had not been applied by the Supreme Court of Justice (Article 15, para. 4, and Articles 34, 89 and 90 of the ECOWAS Treaty and the 1991 and 2005 Protocols thereto on the ECOWAS Court of Justice), and in omitting its decision on a constitutional issue that had been raised by the Defence in the constitutional appeal, namely that the Supreme Court’s interpretation that the recognition by Cape Verdean courts of the ECOWAS as a supranational organization would be unconstitutional, was in itself unconstitutional due to a violation of Articles 3, 12, para 1 and 2, and 210, para 2, of the Constitution of the Republic of Cape Verde and Articles 89 and 90 ECOWAS Treaty. The Constitutional Court has thus also omitted a ruling on relevant constitutional issues that had been raised in Alex Saab’s constitutional appeal. It should therefore rule explicitly on the matter and, in doing so, grant  the constitutional appeal and recognizing the binding force of the decisions of the ECOWAS Court.

– There was no Judge Rapporteur and his signature presented on the decision of the Constitutional Court of 7 September 2021. The existence of the Judge Rapporteur is necessary since his functions are fundamental for the process in accordance with the jurisprudence of the Constitutional Court.

– The Decision of the Constitutional Court is null and void since it was pronounced in contradiction with the opinion of the rapporteur.

– The Constitutional Court pronounced that Alex Saab’s status in the process is not as an accused person and therefore claimed “…it is doubtful whether the rights, freedoms and guarantees reserved to accused can be fully applied to him.” This contradicts the Judgment itself in which the Constitutional Court states that the provisions of the criminal procedural law be applied as subsidiary to Alex Saab’s extradition case. The Defence asks how the provisions of the criminal procedural law can be applied to Alex Saab if he is not an “accused”?

– The Constitutional Court ruled that there was no unconstitutionality of the Extradition proceedings in so far as the case could be ruled in camera and a hearing in which Alex Saab would be heard on the reasons to grant or refuse extradition was not required since he had been heard upon his detention. The Court omitted to rule on the matters raised by the Defence in the constitutional appeal, namely on whether it would be unconstitutional not to conduct such a hearing when the person had been
heard upon their detention before any extradition request had been lodged (and it would thus be impossible for the person to be informed on the contents of such a request and to address in person the relevant issues in full extent). The Constitutional Court has thus also omitted a ruling on relevant constitutional issues that had been raised in Alex Saab’s constitutional appeal. It should therefore rule explicitly on the matter and, in doing so, grant the constitutional appeal.

– The Constitutional Court issued a surprise ruling, without having first given the Defence a chance to make statements on the inadmissibility of the ruling on the merits of a number of constitutional questions that had been raised. Based on these flaws, Alex Saab’s Defence is confident that the Constitutional Court will grant the application on Nullity and issue a new ruling granting – at least partially

– The constitutional appeal and remanding the case back to the judicial courts, according to the Law. The Defense Team of Alex Saab will not fail to use all lawful and legal means that the Law and the Constitution enshrine to enforce the rights of their Constituent and Justice in the instant case, as the duty of legal representation imposes.

Praia, 8 October 2021

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