In the recent hearing before the Constitutional Court – the last in which the fate of Alex SAAB will be decided – the legal defence team, within the short time that it had available, vehemently reiterated that the negative requirements are met that make the extradition of Alex SAAB to the U.S.A. unfeasible.
The Cape Verdean extradition regime, embodied both in the Constitution of the Republic and in the Law on International Judicial Cooperation – Law No. 6 / VIII / 2011, dated 29th August – lists under its Article 6, a set of situations that it calls general negative requirements of international cooperation, requirements that, once verified, make the extradition of a person in the framework of international judicial cooperation unfeasible and precluded.
It follows from the aforementioned Article 6 that if the process does not satisfy or does not respect the requirements of international human rights instruments ratified or contained in the Cape Verdean legal system; if there are, well-founded reasons to assume that cooperation is requested in order to prosecute or punish a person on account of their race, religion, gender, nationality, language, their political or ideological convictions or their membership of a particular social group; if there is a risk of a person’s procedural situation worsening for any of the reasons mentioned above; if the extradition could lead to a trial by a court of exception or respect the execution of a sentence handed down by a court of that nature; if the fact to which the extradition request relates is punishable by the death penalty or any other that may result in irreversible damage to the person’s integrity; if the fact that determines the extradition respects the offence that corresponds to a prison sentence or a security measure of perpetual or indefinite duration; and further, whenever it can reasonably be assumed that the person may be subjected to torture, inhumane, degrading or cruel treatment, extradition shall be refused.
It should be noted that the Law on International Judicial Cooperation indicates these requirements as negative general requirements, suggesting the existence of specific negative requirements, the verification of which makes the extradition of a person unfeasible, indeed impossible.
Now, one of these specific negative requirements to which the LCJI – Law on International Judicial Cooperation, itself refers, is precisely the absence or lack of double jeopardy.
The LCJI meets the requirement of double jeopardy in two ways: under Article 31 paragraph 2 when it states that: “the surrender and handing over of the person sought is only admissible in the case of a crime, even if attempted, punishable by Cape Verdean law and by the law of the requesting State with a penalty or deprivation of freedom for a maximum duration of not less than one year” and also expressly under Article 125, whose title is precisely double jeopardy and which reads as follows: “the offence that motivates the request for cooperation shall be punishable by the law of the State that makes it and that of the State to which the request is made” .
It should be noted that these LCJ norms are interpretative norms of the Constitution. In fact, double jeopardy emerges from the principle of criminal legality that has a context under Article 34 paragraph 4 of the Constitution of the Republic. Hence its constitutional relevance, which, in case of violation, determines the intervention of the Constitutional Court.
At the recent hearing before the Constitutional Court, Alex SAAB’s defence reiterated this point, alerting and warning that, with due respect, neither the Public Prosecutor’s Office, nor the Barlavento Court of Appeal, nor the Supreme Court of Justice, gave adequate treatment to the negative requirement of double jeopardy.
On this point, the STJ – Supreme Court of Justice, limits itself to saying the following: “the facts constituting the crime of money laundering and criminal organisation are also provided for in Cape Verdean law as crimes punishable by imprisonment from 4 to 12 years, under Article 39 of Law No. 38 / VII / 2009, dated 27th of April, the first crime, and from 2 to 6 years of imprisonment, pursuant to Article 291 of the Penal Code, for the others”.
This assessment in principle and based on the nomem iuris, things are as they are and not as the parties claim they are, is rejected by all doctrine and all jurisprudence that have dealt with this matter. Note, by the way, that the American courts themselves reject this view.
The starting point in applying the principle of dual criminality is neither norms, nor value judgments, nor legal qualifications. That starting point is the collection of facts pointed out in the indictment or sentence. It will be dealing with concrete facts, criminal conducts practiced by the agent.
Once these facts are inventoried or registered, which, according to the prosecution, determined the indictment of the extraditee, the person whose extradition is sought, in the country that requested the extradition, the same facts must be submitted to evaluation before the State of the venue, determining whether the assumptions of objective and subjective imputation are confirmed in the light of the legal system of the lex fori, or choice of law rule. In other words, double jeopardy requires an operation of transposition: the requested court must transpose those facts to the legal system of the venue and question whether the same facts – if they had been practiced before the Cape Verdean legal system – would or would not fulfil any criminal type, in this case, the crime of money laundering.
However, the STJ did not carry out the transposition. It did not assess the facts that Alex Saab has been accused of before the Cape Verdean legal system and, as such, verified the requirement of double jeopardy in a situation where such a requirement does not exist.
In accordance with Article 39 of the Law on Money Laundering: “whoever converts or transfers the benefits of the crime, or assists or facilitates any of these operations, in order to conceal their illicit origin or hinder their confiscation, or even help anyone involved in the practice from the main offence to evading the legal consequences of his acts, shall be punished with imprisonment from four to twelve years”.
Thus, according to the law just transcribed, essential in the crime of money laundering is the illicit origin of the advantages of a crime. Therefore, in the Cape Verdean legal system, the crime of money laundering presupposes the existence of at least two crimes: one, a prior crime and two, a subsequent crime or crimes.
The prior crime is the one that makes possible the entry of illicitly obtained capital in the criminal’s legal sphere; the crime or subsequent crimes are all those aimed at hiding, converting, transferring the benefits of the crime, assisting or facilitating some of these operations in order to conceal their illicit origin or for obstacles to their confiscation (Article 24 of the Law on Money Laundering).
Therefore, to find out if we are facing a situation of double jeopardy, in order to make extradition feasible, the STJ should investigate whether the facts of which the Appellant is accused constitute a crime under the Cape Verdean legal system.
According to the actual indictment brought by the U.S. public prosecutors, Alex Saab obtained the supposedly laundered funds in the U.S. through a contract entered into with the Government of Venezuela. Therefore, these facts took place in Venezuela. Therefore, it is not possible to verify the existence of a prior or previous crime without resorting to the rules of application of the criminal law in the area.
In fact, whenever we find ourselves before two or more legal systems that claim the criminal relevance (or non-relevancy) of the same facts, we have a conflict of criminal laws in the area. In this case, the facts that allegedly constitute a prior crime took place in Venezuela. However, the USA, under the Law of Foreign Corrupt Practices, considers that those facts are equally relevant before the American Courts.
Therefore, we have a conflict of criminal laws in the area, a conflict that has to be resolved by resorting to the conflict rules in force in the Cape Verdean legal system.
As we have mentioned, the rules of conflict of criminal laws in the area carry an axiological and evaluative dimension such that compliance or non-compliance with the command provided for therein may determine the punishment (or non-punishment) of the formal suspect or extradition or non-extradition of a person sought, depending on the law declared competent. Suffice it to bear in mind, that, if jurisdiction is assigned to a legal system that characterises the fact as a crime, when that jurisdiction should have been assigned to another legal order, whose rules do not characterise the fact as a crime, the final result is the punishment of an innocent person, solely on account of failure to comply with the rules governing conflicts of law in matters of criminal law enforcement in the area.
Cape Verdean criminal laws are governed, in the domain of application in the area, by the principle of territoriality. As the facts practiced by Alex Saab, which allegedly form part of the prior crime of money laundering, occurred in Venezuela, Venezuelan law is responsible for deciding on their criminal relevance, in accordance with Cape Verdean Conflict Law.
This jurisdiction is denied to U.S. law because the latter is not entitled to jurisdiction under Cape Verdean conflict law. Therefore, it does not matter for the Cape Verdean legal order, the competence that the American law attributes to itself to assess the criminal relevance of these same facts.
The similarity of this position with the decision of the Swiss Court that ordered the filing of the investigations against Alex Saab made us highly comfortable as to its scientific goodness.
After 3 years of investigation, the Public Prosecutor of Geneva had the investigations against Alex Saab, which were based on the same reasons that now determine his extradition, to be closed. Resorting to the rules of application of criminal law in the area, he concluded that “there is no such no additional element that allows the proceeding of the money laundering investigation for the Public Prosecutor’s Office to proceed with the filing of this criminal case”. Therefore, it ordered the dismissal of the case and ordered the compensation of Mr. Saab for the damages caused.
Laws define the rules of the game, within the framework of the social contract. We cannot ignore them at and for our own convenience, at any given time.
Respect for the rules of the game, previously established, guarantees the cohesion of the members of a community and contributes to social peace.
