Mr. Saab was appointed a Special Envoy of Venezuela, and on 24 December 2020 he was appointed as Venezuela’s Alternate Permanent Representative to the African Union. On being appointed a Special Envoy, Mr. Saab was granted broad authority on behalf of Venezuela to arrange for the procurement of basic food, medicines and medical equipment. Mr. Saab was also authorized to meet with government authorities, representatives of institutions and companies, both public and private, in order to find solutions to the complex situations affecting Venezuela.
In the context of the COVID-19 pandemic, the Venezuelan Minister of Foreign Affairs informed Mr. Saab that he had been instructed to negotiate with the organisations in the Islamic Republic of Iran.
The Iranian Embassy in Venezuela sent a Note Verbale to the Ministry of Foreign Affairs of Venezuela. The Note Verbale was sent prior to Mr. Saab’s visit to Iran and provided confirmation of his meetings between 13 and 16 June 2020 in connection with the supply of urgently needed food and medicine to Venezuela.
The detention has been maintained since while he awaits extradition to the United States of America. The plane, in which Mr. Saab was traveling to Tehran to carry out his special mission, made a refueling stop on the Cape Verdean Island of Sal. Approximately an hour later Mr. Saab was denied permission to take off and detained by the Cape Verdean authorities in response to an international arrest warrant that was circulated by INTERPOL based on an alleged Red Notice against the victim issued at the request of the United States of America. At the time of his arrest, neither the copy of the alleged Red Notice, nor the arrest warrant was presented to Mr. Saab. When local law enforcement boarded Mr. Saab’s aircraft, he informed them that he was undertaking a Special Mission and that he had the documents to prove this. This was ignored by the Officer in charge.
On 13 June 2020, the Minister of Foreign Affairs of Venezuela sent correspondence to the Minister of Foreign Affairs, Communities and Defense of Cape Verde in which he invoked Mr. Saab’s immunity in accordance with international law. The Minister further stated that Mr. Saab was acting on behalf of the Government of Venezuela carrying out an important humanitarian mission in the fight against the COVID-19 pandemic. On the same day, the Minister of Foreign Affairs of Venezuela sent additional correspondence to the Minister of Foreign Affairs, Communities and Defense of Cape Verde claiming for the respect of the principles of immunity and inviolability of Venezuela’s Special Envoy.
Following an urgent challenge by Venezuela, filed on 15 June 2020, INTERPOL cancelled the Red Notice. Cape Verde refused to release Mr. Saab stalling, as we now know, in anticipation of an extradition request from the United States.
The Embassy of the United States of America in Cape Verde requested the authorities of Cape Verde to extradite Mr. Saab to the United States pursuant to an indictment filed with the United States District Court for the Southern District of Florida on 25 July 2019.
In general, these appeals were based (a) on Mr. Saab’s inviolability and immunity, (b) on the illegality of the arrest and (c) on Mr. Saab’s pre-existing health problems which were further aggravated by his arrest. All these appeals were rejected by the Cape Verdean courts, which decided to maintain Mr. Saab’s detention.
2 December 2020, the ECOWAS Court of Justice granted Interim Measures in favor of Mr. Saab in which the Court ordered Cape Verde to immediately release Mr. Saab into house arrest, pending the Court’s determination of the merits of Mr. Saab’s application and that the extradition process be halted and he be given access to the specialist physicians of his choice. Cape Verde did not comply this Decision.
The ECOWAS Court of Justice by its binding Ruling ordered Cape Verde to release Mr. Saab with immediate effect in restoration of his freedom of movement, to immediately terminate the execution of all procedures and processes to extradite him and to indemnify a compensation to Mr. Saab for the moral damages suffered as a result of his illegal detention.
On 16 March 2021, in open defiance of the binding ECOWAS Court of Justice’s ruling, the Cape Verde Supreme Court of Justice rendered judgment in response to an appeal dated 14 January 2021 on extradition. By the decision the extradition of Mr. Saab to the US was granted.
On 25 March 2021, it became known that the Public Prosecutor in Geneva, after three years of investigation over accusations of money laundering against Mr. Saab, concluded that the evidence was insufficient and decided to terminate the investigation, as well as pay compensation to Mr. Saab. The ending of the investigation and the fact the Public Prosecutor paid damages to Mr. Saab, according to a legal opinion provider by a former Attorney General of Geneva, amounts to an acquittal on the charges. It is noted that a substantial amount of the funds received into Switzerland were from companies linked to the same Venezuelan social housing program, which is at the heart of the U.S. District Court Indictment of Mr. Saab of 25 July 2019 and served as the basis for the extradition request.
Cape Verde submitted two objections to the ECOWAS Court of Justice’s decision of 15 March. The first objection was dedicated to an “error” in calculation concerning the date of issuance of the Red Notice against Mr. Saab on 13 June 2020. The second objection presented by Cape Verde challenged the jurisdiction of the ECOWAS Court of Justice to decide the case due to what it claimed was the non-binding force of the Supplementary Protocol 2005, in consequence whereof the decision of the ECOWAS Court shall be immediately enforceable and definitive in Cape Verde. On 24 June 2021, the ECOWAS Court issued its decisions in response to objections submitted by Cape Verde. In its ruling the Court reaffirmed that (a) the Red Notice was issued after Mr. Saab’s detention and (b) Cape Verde is bound by the ECOWAS Additional Protocols to the ECOWAS Treaty. Thus, the ECOWAS Court of Justice dismissed the objections of Cape Verde and upheld the previous decision. Dissatisfied with the Judgment of the Supreme Court of Justice, Mr. Saab appealed to the Constitutional Court, the highest court of Cape Verde.
The Permanent Mission of the Bolivarian Republic of Venezuela to the United Nations in Geneva submitted an urgent appeal before the Special Rapporteur on Torture at the Office of the High Commissioner for Human Rights.
Considering that Cape Verde did not comply with the Judgment of the ECOWAS Court, and given that there is a high risk that Mr. Saab’s appeal would be dismissed by the Cape Verdean Constitutional Court, Mr. Saab submitted a communication to the United Nations Human Rights Committee, including a request for Interim Measures. Mr. Saab in his communication alleged, inter alia: a) acts of torture and ill- treatment at the time of the arrest and in detention by State agents; b) inhumane and degrading conditions of the detention due to the lack of medical care given his health condition as a cancer patient suffering numerous pathologies that require urgent medical care; c) the risk of being tortured and ill-treated in case of extradition and to be exposed to further violations of his rights if extradited; d) the denial of his right to be informed of consular rights; e) and the arbitrary nature of his detention.
The United Nations Human Rights Committee registered Mr. Saab’s communication and granted Interim Measures by requesting the Respondent (Cape Verde) to “refrain from extraditing Mr. Alex Nain Saab Moran to the United States of America while his case is under consideration by the Committee or until further notice. The State party has been further requested to take all necessary measures to ensure access to appropriate health care for the author, preferably by independent and specialized physicians of his choice.” It was also stated that in light of the COVID-19 pandemic, Cape Verde has been granted an exceptional deadline of eight months (until 8 February 2022) to provide any information or observations in respect of both the question of admissibility and the merits of the communication.
Venezuela submitted an urgent application before the Working Group on Arbitrary Detention alleging that Mr. Saab is subjected to arbitrary arrest and detention in Cape Verde.
On 16 June 2021, the United Nations Human Rights Committee, in the light of the information before it concerning the alleged deterioration of Mr. Saab’s health, has reminded Cape Verde of its request for interim measures of 8 June 2021.
The Cape Verde Constitutional Court rejected the application by the defense team to comply with the UNHRC Interim Measures decision.
Complaint to the African Commission on Human and People’s Rights including request for provisional measures was submitted. On 12 November 2021, the African Commission notified H.E. Saab’s defense that it registered the case and granted provisional measures with regard to the communication submitted on 11 August 2021. It is worth noting that the African Commission was called into an emergency session on 13 October 2021, and it was on that day that the African Commission decided on H.E. Saab’s communication.
Oral hearings took place before the Cape Verde Constitutional Court. Mr. Saab’s defense and Prosecutor General provided their oral arguments. The decision of the Constitutional court should have been delivered in a 7-day period from 13 August (under art. 73 (2) of the Law on Judicial Cooperation in Criminal Matters, however, it was only on 7 September 2021, that the Cape Verde Constitutional Court ruled to reject Mr. Saab’s appeal and granted his extradition to the U.S.
A request for clarification of the judgment of 7 September 2021 was filed to the Constitutional Court. On 22 September 2021 the Constitutional Court of Cape Verde dismissed Mr. Saab’s request for clarification.
Mr. Saab’s defence filed an application on nullities of the decision that granted Mr. Saab’s extradition. On 13 October 2021 the Constitutional Court of Cape Verde dismissed application on nullities.
Five U.N. bodies: (i) the Working Group on Arbitrary Detention; (ii) the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; (iii) the Special Rapporteur on the independence of judges and lawyers; (iv) the Special Rapporteur on torture and other torture and other cruel, inhuman or degrading treatment or punishment; (v) the Special Rapporteur on the negative effects of torture on the human rights of women on the negative effects of unilateral coercive measures on the enjoyment of human rights – sent an unprecedented letter to the government of Cape Verde on July 19, 2021, which the United Nations has made public on 15 October 2021. The U.N. independent experts expressed their alarm at the fate of Mr. Saab in hands of the Cape Verdean authorities, who are suspected of torture, inhuman and degrading treatment, arbitrary arrest and detention, among other human rights violations. The group of U.N. special Rapporteurs collectively put Cape Verde on notice that it must cease and desist the violations suffered by Alex Saab.
Shortly after 16.00 local time, Cape Verdean police officers entered the house, where Mr. Saab was being detained and took him to Sal airport where he was handed over to U.S. agents.
This action was taken with no representative of the defense team, no prior notification has been provided, nor did they have the relevant documentation or resolution to that effect. The Cape Verde government did not wait for the deadline for the final decision, it did not wait for the case to go down to the Barlavento Court of Appeal and it did not wait for the Barlavento Court of Appeal to rule on the issue of Alex Saab’s health precluding extradition and on the dismissal of the money laundering allegations by the Geneva Public Prosecutor.
Cape Verde extradited H.E. Alex Saab in violation of its local laws: i) the extradition proceedings were not over on 16 October 2021 and the decisions of the Constitutional Court of Cape Verde may have been appealed. ii) The Constitutional Court, on 13 October 2021, issued a “res judicata” certificate, meaning that the decision of extradition become final and unappealable. However, given that the Constitutional Court has no jurisdiction on the merits of extradition, its final decision must have been communicated to the Barlavento Court of Appeal, which is a court of the first instance, to certify that its previous decision became final – but this has never happened. iii) The defense of H.E. Alex Saab only become aware of the certificate on 16 October 2021, through the press, and after H.E. Alex Saab was boarded the plane of the U.S. Government. iv) Cape Verdean authorities did not notify the Ambassador of Venezuela in Cape Verde about the extradition of H.E. Alex Saab despite the fact that the Ambassador was present in Cape Verde at that time.
A Motion to Vacate order conferring fugitive status and for leave for special appearance to challenge indictment was filed in the U.S. District Court for the Southern District of Florida, where the U.S. indictment against Mr. Saab is pending. This motion is based on two fundamental grounds: (a) that Alex Saab was (and remains) a fully accredited Special Envoy of Venezuela, traveling on an official mission to Iran, and is therefore entitled to immunity (personal inviolability) under the Vienna Convention on Diplomatic Relations and the U.S. Diplomatic Relations Act, which implements the treaty and provides that any case filed against such an individual “shall be dismissed,” 22 U.S.C. § 254d; further that since 24 December 2020, Alex Saab has been appointed as Venezuela’s Alternate Ambassador to the African Union and (b) that the U.S. Foreign Corrupt Practices Act, which Alex Saab is alleged to have violated, applies only to activity within the U.S. and that this, too, requires the dismissal of the indictment because the activity alleged against him took place outside of the U.S.
DOJ presented its response to Mr. Saab’s Motion to Vacate.
A reply was filed to the U.S. District Court for the Southern District of Florida in order to challenge the position of the Department of Justice.
18 March 2021 (only 2 days after the decision of the Supreme Court of Justice of Cabo Verde to grant the extradition) the judge of the U.S. District Court for the Southern District of Florida ruled to dismiss the Motion to Vacate.
An open brief opposing the order of 18 March was presented to the Court for Appeals for the 11th Circuit.
The Court of Appeals of the 11th Circuit issued an order requiring the U.S. government to file a brief within 30 days (Monday, 6 September, 2021) and sending the case to a merits panel for adjudication. The order clears an important procedural hurdle for the appeal, which will now proceed past an initial jurisdictional phase directly to the merits. This decision signals a likelihood that the Court, among the most respected in the United States, will adjudicate in favor of Alex Saab’s defense of diplomatic immunity.
The Department of Justice submitted a motion for a 30-day extension.
Mr. Saab’s U.S. Counsel submitted Opposition before the United States Court of Appeals for the 11th Judicial Circuit against the Motion for a 30-day extension.
The U.S. Court of Appeals for the 11th Circuit said “no” to the DOJ’s request for a 30-day extension and only granted extension for 14 days. Thus, the DOJ must provide its brief by 7 September 2021.
DOJ asked for another extension of 7 days (until 14 October) and the defence appealed this request.
11th Circuit granted the extension requested by the DOJ.
The DOJ presented its brief.
Mr. Saab was extradited to the U.S.
Initial Court appearance (arraignment hearing) before the U.S. District Court for the Southern District of Florida (Magistrate Judge John J. O’Sullivan) at 1 p.m. Magistrate Judge John J. O’Sullivan set a Nov. 1 arraignment date (which was postponed to Nov. 15 as the defence asked U.S. Magistrate Edwin G. Torres for the arraignment to be postponed by two weeks, since the defence have been unable to personally see Mr. Saab at FDC (Federal Detention Center) because he’s in quarantine).
Given a numerous photos and videos of Mr. Saab in the internet after the initial court appearance, the defence of Mr. Saab filed a motion in which requested that the Court take reasonable steps to prevent further Rule 53 violations by requiring the public to access future hearings via telephone and limiting video access to only necessary parties: Mr. Saab’s family, and a limited number of accredited press organizations with a demonstrated record of adhering to the restrictions of Rule 53 and who affirm that they will comply with Rule 53 before being admitted video access to any hearings conducted over Zoom. And the second request was that the Court refer the violators of Judge O’Sullivan’s order to the United States Attorney’s Office for an investigation. 10 November 2021, the Court for the Southern District of Florida issued order granting in part and denying in part Mr. Saab’s Motion to enforce Rule 53 and to limit zoom access. The Court denied first request (requiring the public to access future hearings via telephone and limiting video access to only necessary parties) considering the reduced number of Covid-19 cases and increased vaccination rates in the South Florida community, the Court intends to conduct all proceedings in this action in person. Accordingly, any further risk of improper photographing of videoconference proceedings is non-existent. The second request of Mr. Saab was granted. The Court referred to the United States Attorney’s Office for the Southern District of Florida those individuals identified in Exhibit A for an investigation into their alleged wilful violations of Judge O’Sullivan’s order prohibiting photographing and broadcasting at Saab Moran’s initial appearance.
A motion to dismiss counts 2 through 8 of Indictment against Mr. Saab was submitted by the DOJ to Court for the Southern District of Florida in accordance with the assurances DOJ made to the Republic of Cabo Verde through diplomatic note No.103 dated 07 September 2020.
The Court for the Southern District of Florida granted DOJ’s motion and issued order of dismissal of counts 2 through 8 of Indictment.
A reply brief of Mr. Saab on the DOJ’s brief dated 14 October 2021 was filed.
The Hearing in the United States District Court for the Southern District of Florida, which assigned the next stage of the Case for Criminal Jury Trial on 03 January 2022.
DOJ’s appellate portion of the criminal division filed motion to dismiss of Mr. Saab’s appeal before the U.S. Court of Appeals for the 11th Circuit.
In-person status conference to discuss a reasonable timeline for the proceedings as to Mr. Saab held in the United States District Court for the Southern District of Florida. The Judge recognized that the appeal divests the lower court of jurisdiction and the time requirements that otherwise apply are abated pending resolution of the Government’s Opposed Motion to Dismiss. Parties agreed that the present trial date is not a realistic one. Status conference to set trial date scheduled for 7 January 2022 at 10.00 am, and later moved to 16 February 2022 due to COVID-19.2
Opposition to the DOJ’s Motion to Dismiss was filed. Mr. Saab has opposed the DOJ’s motion and also is moving to expedite the appeal. The 11th Circuit was urged to appreciate the importance of this case and finally recognize the arrest and detention of Mr. Saab for what it is: a gross violation of the United States’ international obligations as ratified and codified by Congress.
The DOJ position is that Mr. Saab is now physically present in the US, therefore, the 11th Circuit must return the case to the District Court (the Court of First Instance) to stand trial.