We understand that the Cabo Verde Public Prosecutor’s Office in their submission to the Constitutional Court dated 28 June, 2021 at p. 26. has asserted that diplomatic commitments entered by the U.S. Executive Branch (here, the Departments of State and Justice) would “necessarily” bind the courts of the United States. This is incorrect.
The United States Constitution is based on principles of the separation of powers and the Judiciary is independent of the Executive Branch. U.S. courts are bound only by the requirements of the Constitution and laws of the United States. And, although treaties are considered to be part of U.S. law, they bind the courts in cases like this only to the extent that they create “self-executing” provisions that a defendant himself has standing to enforce.
The “rule of specialty” applies in extradition cases where one country has made certain specific commitments to another country as a condition of securing custody of the extradited person. It provides that, where those commitments involve a limitation on the offenses for which an extradited person can be prosecuted, that individual can only be tried for those specifically stated offenses. No new charges can be brought against such an individual.
This rule is generally applicable, but it has important limitations in the United States which apply with particular vigor to Mr. Saab Moran’s case. Under binding judicial precedent applicable to the U.S. District Court for the Southern District of Florida, where the case against Mr. Saab Moran is pending, specialty applies only where the extradition was based upon an extradition treaty, which specifically features the “rule of specialty”, between the United States and the country from which extradition was sought, here Cabo Verde. This rule is articulated in the decision of the United States Court of Appeals for the Eleventh Circuit in United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. 2009), which is binding on the District Court.
Because there is no extradition treaty between the United States and Cabo Verde, even if the United States makes a commitment to Cabo Verde to limit the charges that it will bring against Mr. Saab Moran, he will be unable to enforce this commitment in the United States courts. This means that this commitment will not prevent the U.S. Department of Justice from bringing additional charges, if it chooses to do so, against Mr. Saab Moran.
Therefore, to the extent that Cabo Verde authorities choose to rely on the rule of specialty to justify a decision to extradite Mr. Saab Moran to the United States, they are not securing any enforceable protection for Mr. Saab Moran against a prosecution that could result in a life sentence which would be impermissible in Cabo Verde.
Mr Saab’s Lead Cape Verdean counsel Dr Jose Manuel Pinto Monteiro said that: “The U.S. law requires that the “rule of specialty”, to be binding on the United States, has to be explicitly featured in the relevant bilateral extradition treaty; no such treaty exist between the United States and Cabo Verde.
To the extent that the U.S. is allegedly relying on the United Nations Convention on Transnational Crime as being the treaty-basis for this extradition, it does not work, since the extradition provisions of the UNTOC did not feature the specialty clause. However, what is even more rhetorically compelling is that the United States has notified the UN that it will not apply the UNTOC’s extradition provision. Hence, it is disingenuous at best and a flat out lie at worst, for anybody to pretend that UNTOC can be the basis for the imposition of the rule of specialty.” - concluded Dr Pinto Monteiro