Lawyers of for the Columbian businessman, Alex Saab who is wanted by the U.S authorities on charges for money laundering have challenged the grounds on which their client was arrested and detained in Cape Verde.
In a reaction to Mr. Saab’s arrest which occurred in June 2020, the lawyers have indicated in two separate letters to the Prime Minister of Cape Verde, José Ulisses de Pina Correia e Silva and the local police chief, Orlando Évora that the basis for arresting the Columbian diplomat is a breach of his fundamental human rights.
According to the lawyers, the Prime Minister José Ulisses de Pina Correia e Silva falsely informed parliament on 27 January 2021 that the country did right by fulfilling an INTERPOL decision to arrest Alex Saab.
“With respect, your assertion that Cabo Verde was “doing fine when it fulfilled an INTERPOL decision” reveals that you have been misinformed about what is required by a member country when it implements and INTERPOL red notice. Plainly, the INTERPOL red notice did not require that Cabo Verde to ignore Mr. Saab status as a special envoy on mission,” the letter to the Prime Minister said.
Alex Saab, who is said to have links with Venezuelan president, Nicolas Maduro, is under house arrest in Cape Verde where his lawyer has been prevented from reaching him.
Below are the full documents
His Excellency José Ulisses de Pina Correia e Silva
Prime Minister of the Republic of Cape Verde
Palácio do Governo de Cabo Verde
Av. Cidade de Lisboa
Praia, Cabo Verde
27 January 2021
Your Excellency,
Re: Unlawful Detention of Ambassador & Special Envoy Alex Saab on 12 June 2020 on the Island of Sal (“the Arrest”)
We are compelled to write to you further to your statements in parliament on 27 January 2021.
With respect, your assertion that Cabo Verde was “doing fine when it fulfilled an INTERPOL decision” reveals that you have been misinformed about what is required by a member country when it implements and INTERPOL red notice. Plainly, the INTERPOL red notice did not require that Cabo Verde to ignore Mr. Saab status as a special envoy on mission.
In this regard, we respectfully invite you to consider the red notice dated 13 June 2020 against the Special Envoy. We attach a copy for your convenience (INTERPOL Red Notice, under Control No.: A-537/62020, dated 13 June 2020).
To answer this question whether you informed the parliament correctly, please refer in the first place to the requested action, stated under the heading “provisional arrest” in Section 3 of the notice. It states “[t]his request is to be treated as a formal request for provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties.”
By stating that the requested provisional arrest should be “, in conformity with national laws and/or the applicable bilateral and multilateral treaties”, INTERPOL underlines to the member country, that they should only arrest/detain Mr Saab, if and in so far that the relevant national laws and/or the applicable bilateral and multilateral treaties, permit such arrest or detention.
More specifically, INTERPOL’s rules clearly states that no action should be taken if that would infringe any relevant treaty:
“All National Central Bureaus, national entities and international entities about to use data processed in the INTERPOL Information System for the purposes of applying coercive measures, including but not limited to detention, arrest, or restriction of movement, must ensure that these data are still accurate and relevant. Notwithstanding the above, any such measures permitted under national law and applicable international treaties may be taken prior to or while the data verification process is carried out.”[1]
Moreover, Article 87.1 states, specific to Red Notices that:
“If a person who is the subject of a red notice is located, the following steps shall be taken:
(a) The country where the person has been located shall:
(i) immediately inform the requesting National Central Bureau or international entity and the General Secretariat of the fact that the person has been located, subject to limitations deriving from national law and applicable international treaties;
(ii) take all other measures permitted under national law and applicable international treaties, such as provisionally arresting the wanted person or monitoring or restricting his/her movement.”
In the present case, there are two reasons, stemming from Articles 63.1. and 87.1 IRPD that compel the conclusion that the INTERPOL Red Notice of 13 June 2020 cannot serve as the legal justification of the continued detention of Mr Saab.
First of all, 13 June 2020, the Minister of Foreign Affairs of Venezuela sent correspondence to the Minister of Foreign Affairs, Communities and Defence of Cabo Verde, in which he invoked the immunity of Mr Saab in accordance with international law. He further stated that, at the time of his arrest, Mr Saab was acting on behalf of Venezuela to procure medical supplies, medicine and food urgently required by Venezuela in the context of the COVID-19 pandemic. On the same day, 13 June 2020, the Minister of Foreign Affairs of Venezuela sent further correspondence to the Minister of Foreign Affairs, Communities and Defence of Cabo Verde, in which he again invoked the immunity of Mr Saab in accordance with international law. Because, by its own terms, the Red Notice requires member countries to execute such notice if that were compatible with their international legal obligation, the letter of the Minister of Foreign Affairs of Venezuela, INTERPOL expects Cabo Verde not to rely on the Red Notice to justify provisionally arrest of Mr Saab.
This because the detention of Mr Saab infringes Cabo Verde’s obligations under a multilateral treaty. Indeed, the Charter of the United Nations (the “UN Charter”) is such a treaty. As a member of the UN, Cabo Verde is bound by the UN Charter. Article 103 of the UN Charter provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The consequence of Article 103 of the UN Charter is that, for example, in the event of a conflict between the obligations of Cabo Verde under the UN Charter and its obligations under the 2003 UN Convention against Corruption (the “UNCAC”), the UN Convention against Transnational Organized Crime (the “UNCTOC”) or an ad-hoc extradition treaty, Cabo Verde’s obligations under the UN Charter prevail. Article 2(1) of the UN Charter provides for the sovereign equality of States. The principle of sovereign equality is one of the basic principles of international law. A corollary of the sovereign equality of States is the duty on each State not to intervene in the internal affairs of another State. In addressing the principle of non-intervention, the International Court of Justice (the “ICJ”) has stated that “[t]he principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference; … the Court considers that it is part and parcel of customary international law” ([1986] ICJ Rep 14, para. 202).
Second, the aforementioned INTERPOL rules do not require a member country to disregard the inviolability of persons enjoying immunity under international law. In international law, it is firmly established that certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. This immunity, immunity ratione personae, entails “full immunity from criminal jurisdiction and inviolability” and applies to public and private conduct and to acts done before assuming office. Full immunity from criminal jurisdiction and inviolability protects the individual concerned against any act of authority of another State (e.g., arrest or detention) which would hinder him in the performance of his duties. ([2002] ICJ Rep 3, para. 51.). The President of Venezuela, Nicolás Maduro Moros, enjoys immunity ratione personae. In the event that the President of Venezuela travelled to Cabo Verde, the authorities in Cabo Verde would be obligated not to take any act of authority against him. The President of Venezuela is unable to leave Venezuela as he steers the country out of the COVID-19 pandemic. In his place, the President of Venezuela authorised and sent Mr Saab to represent him in the conduct of Venezuelan affairs. As such, Mr Saab enjoys the immunity ratione personae that the President of Venezuela would have enjoyed had he transited through Cabo Verde on 12 June 2020, and this immunity has not been waived by Venezuela. Indeed, the Government of Venezuela has informed the Government of Cabo Verde that Mr Saab has immunity. The foregoing means that, in arresting and detaining Mr Saab, the authorities in Cabo Verde have taken coercive measures which hinder Mr Saab in the performance of his duties. They have breached Mr Saab’s immunity ratione personae. This same immunity ratione personae precludes Cabo Verde from extraditing or surrendering Mr Saab to the US, as such extradition or surrender would be an act of authority by Cabo Verde which would hinder Mr Saab in the performance of his duties.
Hence, having regard to Mr Saab’s immunity under international law, INTERPOL does not expect his provisional arrest, unless Venezuela waives the immunity. Therefore, Cabo Verde cannot rely on the Red Notice of 13 June 2020 to justify the detention of Mr Saab.
Having established that you have wrongly informed the parliament that the INTERPOL red notice did not require that Cabo Verde to ignore Mr. Saab status as a special envoy on mission, we should bring to your attention that INTERPOL’s rules make Cabo Verde liable for ignoring the limitations of the Red Notice. Article 5.7 of INTERPOL’s Rules provides:
“Recipients of data processed in the INTERPOL Information System shall be fully responsible for:
(a) any action taken at the national level based on data they have received;
(b) taking the appropriate measures so that data received are immediately updated at the national level once they have been informed of any modification or deletion.”
In the present case, the recipient of the data, i.e. the Red Notice, processed in the INTERPOL information system, is the Attorney General of Cabo Verde. This means that under Article 5.7 IRPD, given that the Attorney General relied on the INTERPOL Red Notice, notwithstanding the limitations contained in Articles 63.1. and 87.1 of the INTERPOL Rules, Cabo Verde would not be able to invoke the INTERPOL Red Notice to avoid liability.
With this clarification, we hope that you will find it appropriate to inform the parliament that Cabo Verde was not required by INTERPOL to ignore Mr. Saab status as a special envoy on mission and detain him notwithstanding his immunity under international law.
Defense Team of Ambassador and Special Envoy Saab
NATIONAL POLICE
SAL REGIONAL COMMAND
Santa Maria, 27 January 2021 T
he Commander Mr. Orlando Évora C/c: Bastonário OACV Mr. Hernani Soares The defence lawyers of Alex Saab, currently detained under house arrest, hereby informs you as the officer holding maximum responsibility among the criminal entities of Island of Sal of the following:
Art. 362, in number no. 3 of Ordinance no. 54/2009, of 30 December, as amended by Ordinance no. 14/2016, of March 23, provides the following: “Lawyer visits are governed by the same rules applicable to other visitors, with regard to the application of control measures, and manual searches are not allowed.” Art. 2292 of CRCV, in number 2;
“In the exercise of their functions and within the limits of the law, documents, correspondence and other items that have been entrusted to the lawyer by his client, that he has obtained for his defence or that relate to his profession are inviolable.” Article 159.1 of the Statute of the Bar Association, EOA, approved by Law No. 91/VI/ 2006, of 9 January, provides that law enforcement officers must ensure that lawyers, when exercising their profession, are treated in a manner compatible with the dignity of the law and have adequate conditions for the exercise of their mandate.
The crimes committed against lawyers in the exercise of their profession and because of that exercise are punished as if such crimes had been against agents of authority (Article 172 of the EOA). From these crystalline provisions and from this legal regulation, there are no doubts that the way the review is applied to lawyers is totally illegal and unworthy and constitutes an obstacle to the exercise of the profession of lawyer.
Thus, and until these wicked and arbitrary measures applied to lawyers are modified, visits to the detainee will no longer be carried out, and, your excellency will by the person legally and morally responsible for this decision, and all other consequences arising from it. The Lawyers, José Manuel Pinto Monteir
[1] Article 63.1 INTERPOL Rules on Data Processing
