The ECOWAS Court of Justice has ordered the immediate release of a Venezuelan, Mr Alex Nain Saab Moran who has been detained by the government of Cape Verde since 12th June 2020 and the payment of 200,000 USD as compensation for the moral prejudice suffered as a result of his arbitrary arrest and unlawful detention.
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Delivering judgment of the Court on Monday, 15 March 2021, Justice Januaria Costa, the judge rapporteur, declared the Applicant’s arrest on 12 June 2020 while in transit through Cape Verde and subsequent detention by the Republic of Cape Verde as unlawful and a violation of Article 6 of the African Charter on Human and Peoples’ Rights that guaranteed the right to personal liberty and security of the person.
The Court also ordered the Cape Verdean authorities to “discontinue all proceedings and processes aimed at extraditing the Applicant to the USA” but declined all other claims, orders and injunctions sought by the Applicant.
In its analysis, the Court observed that though the Venezuelan government later claimed Mr Saab Moran was travelling as its special envoy, he did not possess valid requirements qualifying him as a diplomat accredited in Cape Verde or other state or of high political office at the time of his arrest.
Consequently, the Court dismissed the Applicant’s claim of diplomatic immunity and inviolabilities as provided in Article 42 of the 1969 New York Convention on Special Missions.
On the Applicant’s allegation of arbitrary arrest and detention, the Court concluded based on evidence before it, that the Respondent state effected the arrest of Mr Saab Moran on 12 June 2020 without informing him of the reasons for his arrest or presenting to him an arrest warrant or a red alert issued by Interpol for his extradition in line with the United Nations Convention against Transnational Organized Crime to which both the US and Cape Verde are signatories, and contrary to Cape Verdean national laws.
Accordingly, the Court held that the Applicant’s arrest and detention was arbitrary and illegal in violation of the Respondent’s national laws and violated Article 6 the African Charter on Human and Peoples’ Rights and Article 9 (1) of the International Covenant on Civil and Political Rights.
The Applicant Mr Alex Nain Saab Moran though his counsel, Mr. Femi Falana and Mr José Manuel Pinto Monteiro initiated suit no ECW/CCJ/APP/43/20 alleging the violation of the Applicant’s rights to liberty and security, freedom from torture and inhuman treatment and freedom of movement and challenging the legality of his arrest during his flight stopover and subsequent detention by the Cape Verdean authorities pending extradition at the request of the US government.
Counsel to the Applicant argued that Mr Saab Moran was arrested without a warrant on-board an aircraft during a stopover to refuel in Cape Verde and arraigned in court on the third day contrary to laws of Cape Verde.
The counsel further argued that the Cape Verdean government erred by arresting and detaining Mr Saab Moran whom they described as a special envoy on a diplomatic mission and was therefore entitled to diplomatic immunity.
In a counter argument, Mr Henrique Semedo Borges counsel to Cape Verde denied violating any of its national laws or international agreements and submitted that the arrest and detention of Mr Saab Moran pending his extradition complied with the general principles of international cooperation in criminal matters.
Mr Borges further argued that the US request for the Applicant’s extradition was premised on allegations of crimes committed by the Applicant on the US territory and that the Applicant did not also meet the requirements qualifying him as a special envoy with the associated immunities.
The Court had in its Ruling of 20 December 2020 following the Applicant’s application for interim measures, ordered the Cape Verdean authorities to place Mr Saab under permanent home detention in good conditions and allow him access to medical treatment and visits pending the decision of the Court on the merits of the case.
Other judges on the panel were Justices Edward Amoako Asante (presiding) and Dupe Atoki (member).
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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