In a few moments the Constitutional Court will render its decision on the basis of the appeal lodged by the Venezuelan diplomat Alex Saab invoking no less than 12 unconstitutional irregularities in the processing of the extradition case that concerns him.
This is a serious and solemn moment, with multiple and complex diplomatic, political, international and legal issues at stake. However, among all these stakes, only the respect of the rule of law, human rights, and the freedom of a man who has been arbitrarily detained for over a year should count.
The long-awaited ruling of the Constitutional Court in this case will not be a ruling like any other. The Court is being asked to rule on the law and to render justice in a case whose handling has been punctuated by irregularities, abuses, violations, and negligence. Any impartial and neutral observer who would be invited to examine the handling of this case would be flabbergasted by the impressive number of irregularities that punctuate this procedure. So much so that this is undoubtedly a textbook case, emblematic of multiple unconstitutionalities and which will undoubtedly serve as a counter-model one day to explain to law students what not to do.
Venezuelan diplomat Alex Saab was kidnapped by the United States.
— Jose Marcial Narvaez P. (@MarcialM2) August 19, 2021
These few lines alone cannot account for the abysmal violations of the rules of procedure and law that are found in this case. However, the narrative alone of a few key episodes in the case would be enough to outrage any jurist with a legal conscience and a sense of justice.
The diplomat Alex Saab was arrested on June 12, 2020 by the authorities of Cape Verde at the request of the United States of America, during an imperious technical stop at the airport of the island of Sal, while he was carrying out a special diplomatic mission with a humanitarian vocation on behalf of Venezuela and was going to Iran for that purpose. Throughout this saga and since the arrest, the authorities have violated the law and the rules of procedure, sometimes through negligence, sometimes through incompetence, and sometimes through abuse of power. This can be illustrated through three striking phases of the procedure, which once again, will surprise an impartial observer, as the violations are so flagrant.
The first phase is the arrest in its law enforcement dimension. The original flaw in this procedure is the purely arbitrary nature of the arrest, which was carried out without an arrest warrant and without an Interpol red notice, and without any reason. This arrest alone is punctuated by irregularities and illegalities that are attested to by a series of documents, evidence and even statements from police officers and other actors in charge of the case.
A first elementary rule has been flouted and must be recalled: every diplomat is protected by his immunity and inviolability. However, Alex Saab’s status as a special envoy was immediately confirmed by the highest authorities in Venezuela. Cape Verde could have challenged this status, but did not. The rule is clear, however, and in no case did it have the power to arrest a diplomat in such circumstances, and thus violate the sacrosanct principles of immunity and inviolability.
A second equally basic rule is that, in a state governed by the rule of law, any arrest must have a legal basis, whether it be in flagrante delicto or, failing that, an arrest warrant. Here again, the arrest is made contra legem, since on June 12, 2020, the Cape Verdean authorities acted without any legally valid reason, without an arrest warrant and without a red notice. Even more serious, to cover this flagrant and incurable irregularity, a red notice will be laboriously transmitted to the Cape Verdean authorities the day after the arrest, but still without an arrest warrant, and will be cancelled a few days later by Interpol itself. From the moment that this illegal Interpol order against the diplomat Alex Saab was annulled, he was kept for 17 days without an arrest warrant and without an Interpol order in a dungeon waiting for the United States to send the extradition request. It was not until June 29, 2020 that the United States of America formally communicated its extradition request accompanied by an arrest warrant in the name of another person.
The second phase is judicial. Even if there is absolutely no doubt from a legal point of view that such an arrest is ab initio arbitrary, illegal and irregular, covered up in a clumsy way by the instrumentalization of the Interpol mechanism, and by the production of irregular and erroneous documents The case took an even more alarming turn when the Cape Verdean judge, supposed to be the guarantor of the legal order and the rule of law, tried to cover up these irregularities by validating the arrest, detention and extradition order. Whether it was the Court of Barlavento, the Attorney General, or the Supreme Court of Justice, which confirmed the extradition order on March 16, 2021, all these judicial actors in Cape Verde tried, with obvious collusion, to deny the evidence of arbitrariness. In decisions and indictments that defy legal understanding, prosecutors and judges added to the arbitrariness of the arrest, the arbitrariness of a prolonged, disproportionate, abusive and excessive detention and an extradition procedure without a warrant and without an extradition treaty. They will do everything to cover up the original irregularities in the case, attempting to validate them legally in decisions that are as absurd as they are arbitrary, and which are themselves riddled with legal errors and abuse of process.
It is difficult to determine whether the incompetence or abuse of these judicial actors is to be blamed, but the desperate attempts to purge the arbitrary arrest and detention of Alex Saab of procedural flaws and flagrant violations was painstaking, and is rigorously impossible from a legal point of view. An arrest without a warrant remains an arbitrary arrest and cannot be cured. Indeed, after having detained a Venezuelan diplomat in undignified and inhumane conditions, after the latter had even been tortured so that he would agree to be extradited and to give information, all without success, The Attorney General finally obtained a warrant for his arrest on March 24, 2021, several months after the arrest, while the court decisions, including the Supreme Court of Justice ruling of March 16, 2021 confirming the extradition, are models of unconstitutionality. The Cape Verdean judge goes so far as to affirm that the current situation of Alex Saab, placed in house arrest, is not deprived of liberty, in order to deny him the exercise of his elementary right to habeas corpus. Such a position, unworthy of a civilized democratic state, is a clear and flagrant violation of international human rights law and the applicable constitutional rules. There is no doubt that there are irregularities and illegalities, but it remains to be seen whether they are the result of incompetence or abuse.
Finally, the third phase, which is taking place in parallel in part, is the international dimension of the case. The government of Cape Verde is illustrated here by a notorious incompetence in the diplomatic management of the case, which is concretely materialized by the engagement of its international responsibility for violations of international law. Clearly obeying instructions, even orders, from Washington, the Government of Cape Verde seems, at best, disarmed in the face of the international dimension of the case and is trying to respond to instructions without concern for the law. Invited, in accordance with the elementary rules of diplomatic life and international relations, to act as a sovereign state in the face of such a dispute by engaging in diplomatic dialogue with a view to finding a peaceful solution, the Government of Cape Verde chose to ignore the diplomatic letters from Venezuela, Iran, China, Russia, the United Nations, the African Union, as well as ECOWAS, to name but a few. Yet, the violations of international law that engage its responsibility in this case are eloquent since Cape Verde violates, inter alia, the principles of immunity and inviolability; consular rights; as well as a significant number of norms of international human rights law, starting with the prohibition of torture and ill-treatment or the prohibition of arbitrary detention. These actions and omissions are illegal under international law and also constitute constitutional irregularities.
This same government of Cape Verde maintains the same evasive approach in the face of international bodies that call for legal reasons. Thus, the government of Cape Verde refuses purely and simply to implement the legally binding ruling of the ECOWAS Court of Justice of 15 March 2021 finding, at the end of an adversarial procedure in which the government of Cape Verde participated fully, that the arrest and detention of Alex Saab are arbitrary and that he should be released immediately. This same government remains equally deaf to the recommendations that were addressed to it, for example, by the United Nations Human Rights Committee, which called for a suspension of the extradition and access to medical care for Alex Saab. These positions adopted by Cape Verde, which accompany the flagrant violations of international law that engage its responsibility, have been indispensable in order to consolidate and maintain the arbitrary detention of the Venezuelan diplomat and participate in the challenge of legal rationality that this case illustrates.
It is within the framework of this case, infected on all sides by unconstitutional defects, irregularities, approximations, and improvisations, that the Constitutional Court will have to render justice and say the law. It will have to sort out the irregularities that are the result of incompetence and those that are the result of abuse, in order to protect the constitution of which it is the guarantor. Its mission is complex in view of the magnitude of the irregularities and defects in this case, but also because it will have to try to restore the rule of law, human rights, constitutional values and justice by affirming and maintaining the obvious irregularities, while preserving, as far as possible, the credibility and reputation of the judicial actors involved. This is its challenge.