Carlos São Vicente’s case : The Rule of Non-Law

No democratic State is governed by the rule of law without respect for the fundamental rights and guarantees of its citizens. Democratic rule of law fails when the primacy of law is subordinated to interests unrelated to the attainment of justice. The rule of non-law is evident when the judicial institutions are subservient to the political power. 

The case in which Carlos São Vicente is the accused, is the epitome of avoidance of the constitutional guarantees intended to protect the accused. 

Carlos São Vicente is innocent. He created wealth through his activity which was carried on legally. All of his acquisitions, earnings, costs and results are evidenced in accounts audited by reputable auditors over 20 years. All this is proven by documents. His case is simply the Kafkaesque chronicle of a foregone decision to convict. 

Here we will consider just a few of the legal irregularities that have been committed in the case against Carlos São Vicente. 

Pre-trial detention without grounds

The indictment order, which led to the pre-trial detention of Carlos São Vicente on 22 September 2020, is not grounded on concrete facts, as the law requires, but rather on abstractions and misleading conclusions.

No less important is the circumstance that his pre-trial detention was decreed by the PGR (Angola’s Attorney General’s Office), the same entity that about one and a half months earlier, at the end of an intensive investigation, had concluded and communicated to the Swiss authorities that Carlos São Vicente had not committed any crime. Between that investigation and the issue of the pre-trial detention decree, no new investigation had taken place. 

Contempt for the accused’s health and risk to his life

Carlos São Vicente is over 60 years old, and he suffers from several chronic medical conditions that require special care and place him at high risk for Covid-19. Since the beginning of his pre-trial detention he suffered several hypertensive crises (blood pressure above 180/110) with a high risk of death or a stroke. However, he never received proper medical assistance during these crises. 

Respect for health and life must take precedence over the justification of pre-trial detention for any accused individual. Even so, the courts, in the various instances of the proceedings, continued to remain indifferent to his serious health condition. 

Intimidation?

On 6 October 2020, that is to say two weeks after his arrest, Carlos São Vicente received the unexpected visit, in prison, of two Prosecutors from the National Asset Recovery Service.  His lawyers had not been notified and could therefore not be present. It is absolutely forbidden, and it is an extremely serious matter, that acts of this nature are carried out without the accused having the possibility of assistance by his lawyer.

What was the reason for this visit, by surprise and without the presence of lawyers?

During that visit Carlos São Vicente refused to hand over his assets to the National Asset Recovery Service. That is undoubtedly the reason why he is still in prison and why so many illegalities have been committed against him.

Excessive pre-trial detention

The legal term of pre-trial detention is 12 months, which can be extended for another 2 months, in exceptionally complex cases. In this case, it was indeed extended for those two months, despite the fact that only a rudimentary investigation had been carried out, which did not justify the extension. After these 14 months, the term of pre-trial detention ended on 22 November 2021. According to the law, the immediate release of Carlos São Vicente was absolutely imperative, but it did not take place, despite the fact that several requests to that effect had been submitted by 23 November. 

Moreover, the courts of common jurisdiction that had the obligation to rule on these petitions, simply ignored them, which was a clear denial and obstruction of justice. 

At least until the end of the year, after about six weeks of excessive pre-trial detention, these courts remained silent. 

Media campaign against the accused

On 22 September 2020, the pre-trial detention order was communicated by the PGR to the media, which immediately disclosed it to the general public, even before Carlos São Vicente and his lawyers had been notified (the lawyers in fact became aware of these developments through the news media).

In the following weeks and months the his case became the subject of intense propaganda on the part of the state-controlled media companies. The case against Carlos São Vicente was included among the crimes allegedly committed by the so-called “marimbondos” (hornets). A public television channel devoted an entire programme to him in which alleged evidence of his crimes was presented. The only public newspaper with daily circulation published a list of the assets “recovered” by the State, including the assets that had been seized in these proceedings.

Several State Attorneys and the Attorney General in person made public statements regarding the attribution to the accused of the crimes with which he was indicted. 

Confiscation of assets without judgement (in anticipation of conviction)

As it is public knowledge, many properties belonging to Carlos São Vicente or his companies were seized, and, shortly afterwards, their final distribution began, upon instructions from the PGR, in favour of various Ministries and other State bodies. This distribution presupposes a prior conviction. As the trial had not yet taken place, this means that the decision to convict the accused had already been taken. What is at issue here is the principle of presumption of innocence of the accused, a guarantee enshrined in the constitution and in the international treaties, which has been shockingly violated.

The same thing happened in the case of the shares of a company belonging to Carlos São Vicente: after their seizure, the appointed custodian hastened to make public the final destination of these shares, assuming that they already belonged to the State.

The illicit appropriation and the use of seized assets constitute a crime. 

The instructions for this purpose were given by the PGR, despite the fact that the case was already under the jurisdiction of a court, that is to say without the PGR having the requisite jurisdiction to do so. However, the competent court decided to ignore the illegalities that were being committed in regard to the seized assets of Carlos São Vicente, thus failing to exercise its own powers. After all, how could the court justify the appropriation of these assets by the State, without attacking the State itself?

Destruction of assets

The presumably faithful custodian of the seized properties had (and still has) the sole duty and responsibility to watch over them to ensure their conservation. This he never did, having left them unattended for months.  However, he was involved, under the instructions received from the PGR, in distributing these properties. 

The largest hotel chain in the country, with units in all provinces, consisting of the IU and IKA hotels, in which Carlos São Vicente, through one of his companies, had made a colossal investment, began to decline. Suppliers stopped being paid, hotel units stopped providing normal services, which led to many of them closing down, while others continued to work, but provided only minimum services and incurred large operating losses.

Many hundreds of workers in this hotel chain were not paid anymore and have lost their jobs, leaving many families destitute.

The voracity of the State was concentrated only in the occupation of properties directly by the State itself.

Use of barred evidence

Even a cursory reading of the accusation brought against Carlos São Vicente reveals that it is strongly based on an alleged report that presents false and inconsistent considerations and conclusions, which are unfavourable to Carlos São Vicente. This report is undated, and it does not bear the author’s name or any signature. It is therefore an anonymous document. As such, the law states that its use is barred. It should never even have appeared in the proceedings and, if it did, it should have been excluded. 

It turns out that, without this anonymous document, there would also be no grounds for indictment, since it is the only source of many of the untruths and falsehoods reported in it. 

In different instances, the courts have recognized that this document is anonymous (there would be no way in which they could fail to recognize this fact…), but, amazingly, they continue to admit it as evidence, hoping that someone will still assume its authorship (or, perhaps, will be designated to do so…). Any possible authorship of this document that could be alleged would be an illegal evidence-whitening manoeuvre. 

The truth is that this anonymous document was used illegally and, without such use, there could be no accusation or trial. And Carlos São Vicente would not have been arrested.

Serious limitation of the right of defence

Carlos São Vicente’s lead defence counsel was prevented by the court from representing him in these proceedings. What is the reason for this?

First of all, whatever the reasons, the court does not have the power to limit the accused’s choice of lawyer. Secondly, the facts invoked by the court constitute specific legal acts which the lawyer in question has performed (for nearly 20 years!), as has already recognized by the Luanda Provincial Council of the Angola Bar Association.

The appeal filed against this decision was not considered immediately, as the appeal court remitted this decision to the end of the proceedings. In other words, all the proceedings will take place without the lawyer who was initially chosen by Carlos São Vicente, thus vitiating their entire course and preventing him from defending himself in the way that he wishes to do so.

Deprivation of means of livelihood and assistance

In a democratic State governed by the rule of law, the accused is not refused the necessary means to meet the personal needs of his household, such as domestic expenses (food, energy, and water) and health-related expenses (in this case, it was already necessary to cover the expenses related to the hospitalization of the accused together with the assistance of a person from his household). On the contrary, the accused must have the assurance that he can use his own resources to the extent necessary to cover the costs of his own defence, namely lawyers’ fees and other associated costs. Instead, the accused has already had to resort to loans to meet some of these needs.

Refusing the accused access to his own funds in order to cover expenses of the nature described above means not only refusing his right to dignity and survival, but it also implies that he is being prevented from defending himself in the way that he considers best for himself. 

To this list of flagrant violations of the law and the Constitution of the Republic of Angola could be added many others: accusation for prescribed crimes and for crimes that had been amnestied, retroactive application of laws, lack of grounds for orders, and even lack of orders for various requests, among others. 

Never, in the history of Angola, has the law been so reviled in judicial proceedings. It is not by chance that this is happening in a time of serious social and economic crisis, in which the wielders of power are weakened by the protests of civil society, and it is not by chance that all this is happening with upcoming elections in which the government will be subject to public scrutiny and needs “trophies” to bolster its popularity among the long-suffering citizenry.

The conviction of Carlos São Vicente is a foregone conclusion, but in the service of what interests?

 Cui bono [whom does all this benefit]?