The Supreme Court of Cape Verde considers that a detention in the form of house arrest is not a detention that can be challenged by habeas corpus. This position of the Supreme Court is legally erroneous and cannot be defended in a state governed by the rule of law. No higher court in any State governed by the rule of law is in principle likely to adopt such an interpretation. Thus, the position of the Supreme Court of Cape Verde shocks the universal legal conscience and defies the most elementary fundamental rights.
First, it is not disputed in international human rights law, fully applicable to this case, that these conditions of deprivation of liberty, including house arrest, amount to detention. This is the position unequivocally reiterated by the civilised nations, as well as by the United Nations Human Rights Committee, the European Court of Human Rights and the United Nations Working Group on Arbitrary Detention in their constant jurisprudence. In adopting the position according to which placing someone in house arrest under the conditions experienced by Alex Saab is not a deprivation of liberty, the Supreme Court of Cape Verde violates human rights law. In international human rights law, the notion of deprivation of liberty contains both an objective element of a person’s confinement in a particular restricted space for a not negligible length of time, and an additional subjective element in that the person has not validly consented to the confinement in question. For the Human Rights Committee there is no doubt that “Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement […].” The United Nations Committee expressly quotes as examples of deprivation of liberty police custody [and] house arrest” (General Comment of the Human Rights Committee n°35, para. 5). In other words, there is no dispute in law that house arrest is a deprivation of liberty. Ambassador Saab cannot not move freely outside the house where he is detained and is kept under constant surveillance by armed or plain-clothed guards. The house is under the permanent watch of police officers heavily armed and drones are watching the patio and the house. There is no doubt that this is a deprivation of liberty and that the full judicial guarantees must apply.
Second, by violating international human rights law and claiming that the detention of Alex Saab is not a deprivation of liberty, the Supreme Court of Cape Verde does not simply commit a blatant erroneous interpretation of the law. It aims to prevent the application of judicial guarantees that protect, in civilized nations and respecting the rule of law, any person deprived of liberty. Among these guarantees, habeas corpus, which dates back to Roman antiquity, has the universal vocation of allowing a person deprived of liberty to challenge the detention before a judge.
The positions adopted by the Supreme Court of Cape Verde regarding habeas corpus in the case of the arbitrary detention of Special Envoy Alex Saab are totally erroneous and legally indefensible. But they are also excessively dangerous for the rule of law and human rights because by adopting such positions the Supreme Court of Cape Verde destroys piece by piece all the constitutional and human rights which have no other objective than to protect individuals against the arbitrariness of power. Instead of playing its role as a guarantor of human rights, the Supreme Court of Cabo Verde is showing itself to the world as the gravedigger of human rights and the rule of law.