The11th Circuit Court of Appeals in Georgia has postponed the decision on the diplomatic immunity of Alex Saab, kidnapped in the United States (USA). The case will once again be in the hands of Judge Robert Scola, who had ruled in the first instance in Florida, which could lead to a new appeal by the Venezuelan diplomat's defence team.
According to the opinion issued by the court of appeals, "the district court did not address whether Saab Morán is a foreign diplomat and immune from prosecution", so they declined the lawyers' team's invitation to "decide that question in the first instance (...) as we are a reviewing court, not a trial court, and the determination of whether a person is a foreign diplomatic official is a mixed question of fact and law", they argue.
NEW: Appeals panel leaves to Judge Scola to decide whether Alex Saab is a Venezuelan diplomat immune from prosecution.
The procedural decision doesn't address the merits of Saab's argument, meaning he can still appeal if Judge Scola deems he must stand trial for corruption. pic.twitter.com/lW0Z4tMt8e
- Joshua Goodman (@APjoshgoodman) May 2, 2022
Despite being an appellate court, the document says, we are 'ill-placed to decide this mixed question of fact and law in the first instance' (...) For all these reasons, we vacate the district court's order as moot and remand the case to the district court," it concludes.
Collateral orders
This decision demonstrates the collusion of the US justice system and represents a procedural subversion, as the appeal did not reach the court by second degree jurisdiction and the right to a second instance review, but by the doctrine of collateral orders, not having been decided by Judge Scola at the time, to try to prosecute Saab in the ordinary way, knowing that diplomatic immunity is a procedural exception that generates the unimpeachability of the Special Envoy.
Strong arguments
On 6 April, Saab's defence, led by David Rivkin, presented oral arguments on the diplomatic immunity of the Venezuelan Special Envoy to the Georgian appeals court.
Rivkin, who is in charge of the case in the US, assured that Alex Saab "cannot be prosecuted or persecuted in any way" because this would affect "the viability of the international system. This requires absolute inviolability of ambassadors and special envoys", which augurs "good results in the recognition of the diplomatic immunity" of the official, as well as his "immediate release".
The Venezuelan Foreign Ministry's accreditation, dated 9 April 2018, allowed Alex to "carry out actions in favour of the Bolivarian Republic of Venezuela, aimed at guaranteeing the commercial and humanitarian procurement of essential goods and services (...)", making clear his diplomatic character.
Continuation of the abduction
A new delay in the trial further violates Alex Saab's rights, continues and worsens with the passage of time. Judge Scola must now make a decision on the basis of a fact that violates the law, i.e. the method used by the prosecution to deprive Alex Saab of his liberty.
On 25 July 2019, Alex Saab, who was already a Venezuelan diplomat under the Vienna Convention, was charged with conspiracy to launder money by the Southern District Court of Florida.
For this reason, the diplomat's defence team appeared before the court to explain the reasons why Alex Saab should not appear before the court, as he was acting as Venezuela's representative to the Islamic Republic of Iran.
The court refused to hear the defence team, declared him a fugitive and applied the theory of delegitimisation of the fugitive, whereby he is deprived of all procedural rights. This request was incompatible, as he enjoys immunity under Art. 29 of the Vienna Convention.
The Court of Appeal's pronouncement reflects their refusal to go against their own jurisprudence, which would make it clear that Cape Verde and the US committed a crime by detaining an acting diplomat.
Political case
Beyond the judicial process is the political moment in which this decision takes place. The Court of Appeals had to decide for the least harmful to itself: on the one hand, ruling in favour of Alex Saab would leave the United States unarmed to continue the Lawfare against Venezuela, while ruling against Alex Saab would affect any process of political dialogue in higher instances between states.
