Cape Verde

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Legal Resources for Cape Verde

Cape Verde Constitution 1980 (rev. 1992) ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

Cape Verde is a country comprising 10 islands that lie 385 miles off the west coast of Africa. Praia, on Santiago, is the capital. The archipelago is divided into the Barlavento group to the north and the Sotavento group to the south.

In 1462, the first settlers from Portugal landed on Santiago, subsequently founding the oldest European city in the tropics – Ribeira Grande, now known as Cidade Velha. The islands of Cape Verde initially played a significant role as an offshore entrepôt with the development of the triangular trade, by which manufactured goods from Europe were traded for slaves. However, the colony became neglected over the years, as the wealth Cape Verde generated decreased dramatically when Spain claimed the Portuguese throne in 1580 and ruled Portugal for 60 years thereafter. By the 1840s, the transatlantic slave trade was in steep decline. Portugal began to neglect Cape Verde, as it was no longer a significant supply base. This created public discontent towards the Portuguese authorities, especially since they did little to mitigate the natural disasters and food shortages that Cape Verde was plagued with.

The long-standing joint colonial administration of Cape Verde and Guinea-Bissau was terminated in 1879 when both became separate Portuguese territories. The contemporary African decolonization movement meant that their status was modified in 1951 to “overseas provinces”, with their inhabitants officially awarded full Portuguese citizenship in 1961. However, some members of the colonial population were dissatisfied and advocated for complete independence from Portugal. In January 1963, the Partido Africano da Independência da Guiné e Cabo Verde (PAIGC) launched its armed campaign to end the colonial and fascist regime. A series of events, including the assassination of PAIGC founder Amilcar Lopes Cabral, and the declaration of independence for Guinea-Bissau on September 24, led to a crisis in Portugal which resulted in a successful coup on April 25, 1974. The new government began negotiating with African nationalist movements.

Hence, Cape Verde achieved full independence on July 5, 1975. Aristides Pereira, the PAIGC secretary-general, and Pedro Pires, a military commander, became the first president and prime minister, respectively.

Currently, the Cape Verde government is a semi-presidential democratic republic. The president is the head of state, while the prime minister is the head of government and is responsible for proposing other ministers. Every 5 years, the president is elected by the absolute majority vote through a two-round system. The prime minister is nominated by the national assembly, the legislative branch which also passes laws. The national assembly has 72 members who are elected through a closed-list proportional system every 5 years.

The Legal system

Cape Verdean law is based on the civil law system.

The Constitution of the Republic of Cape Verde and relevant legislation provide for a judiciary independent from the executive. This is based on three levels of appreciation by different courts:

The Court of First Instance

The Court of Second Instance or appeal (Court of Appeal of Sotavento and Court of Appeal of Barlavento); and

The Supreme Court of Justice. It has its headquarters in Praia.

The Constitutional Court.

Legal Aid

At the governmental level, legal aid is guaranteed. This is a principle enshrined in the Constitution of the Republic, which aims to guarantee that no one is prevented from knowing his rights, protecting or defending them as a result of his social or cultural condition or because of insufficient economic resources.

Some microfinance associations also provide legal aid services:

MORABI – Cape Verdean Association for the Advancement of Women, an NGO which was created on March 28, 1992. The main mission is to promote the integration and improvement of the social position of Cape Verdean women from a gender perspective, in promoting their participation in the process of economic, social, and social development.

OMCV – The Women’s Organization of Cape Verde, a microfinance institution created on March 27, 1981. Provides legal advice to its clients. Has also worked extensively on the socio-economic and political empowerment of Cape Verdean women, including the implementation of microfinance projects that generate more opportunities for women to set up their businesses.

OACV - Cape Verde Bar Association, a public association representing law graduates who, in accordance with the Statute of the Cape Verde Bar Association and other applicable legal provisions, practice law professionally in Cape Verde.

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures or Detentions The constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court. The National Police should not make arrests without a warrant from the Attorney General, unless they apprehend the suspect in the act of committing a crime. Furthermore, unless mandated by the Attorney General, neither the National Police nor the Judicial Police have the authority to conduct investigations. Any detained or arrested person must be informed immediately, in an unequivocal and understandable manner, of the reasons for his or her detention or arrest and constitutional and legal rights, and shall be authorized to contact an attorney, directly or through his or her own family or a person whom he or she trusts. The person has the right to identification of those in charge of his or her detention or arrest and his or her interrogation.

The detention or arrest of any person and his or her precise location shall be communicated immediately to the family of the detained or arrested person or to the person they indicate, with a brief description of the reasons that led to his or her detention or arrest.

Any detained person must be presented, within a maximum of 48 hours, to a competent judge, who shall be required to:

Explain to him or her clearly the facts that motivated his or her detention or arrest;

Inform him or her in a clear and understandable manner of his or her rights and duties while he or she is detained or arrested;

Interrogate and listen to him or her, with respect to the alleged facts, in order to justify his or her detention or arrest, in the presence of the defense counsel freely chosen by him or her for the opportunity to defend himself or herself;

Make a reasoned decision, validating or invalidating the detention or the arrest.

Detention or preventive custody shall not be maintained whenever its substitution for a more favorable procedural precautionary measure established in the law is shown to appear appropriate or sufficient, for the purposes of the law. Judicial decisions ordering or maintaining preventive custody, as well as the location where this custody will be carried out, must be communicated immediately to a family member of the detained or arrested person or to a person trusted and indicated by the latter. Preventive custody shall be subject to the time limits established in the law, and may not, under any circumstance, exceed thirty-six months, counted from the date of the detention or arrest, in the terms of the law.

Right Not to be Tortured or Ill-Treated The constitution and law prohibit such practices. This is governed by the principle that human life and the physical and moral integrity of the human person shall be inviolable. As such, no one may be subjected to torture or treatments that are cruel, degrading or inhumane, and under no circumstance whatsoever shall there be a death penalty.

Right to Medical Care The Cape Verdean policy-makers have taken a wider view of health and focused on ensuring universal access to health care and providing primary health care services. All Cabo Verdeans are entitled to a basic package of health services, which covers antenatal care, emergency treatment, and treatment and prevention for HIV, tuberculosis and malaria. Some other medicines and consultations involve a US$1 surcharge, but that fee is substantially less than the actual cost of the treatment or consultation provided. More than 80% of the population lives within 30 minutes of a health facility. Additionally, 40% of Cabo Verdeans have social insurance through their employers, entitling them to more health services as well as sick pay.

Right to be Informed of Charges See Right Against Unlawful Arrests, Searches and Seizures or Detentions for relevant provisions of the constitution which uphold this right.

Right to be Presumption of Innocence The constitution stipulates that every indicted person shall be presumed innocent until he or she is proven guilty and must be tried in the shortest time compatible with defense guarantees.

Right Against Self-Incrimination In the constitution, it states that the person detained or imprisoned shall not be obliged to make statements about the facts alleged against him or her (i.e. they cannot be forced to testify).

Right to Counsel and Effective Assistance and the Right to Present a Defense As outlined in the constitution, everyone has the right of defense, as well as to legal information, to legal representation and to be accompanied by an attorney before any authority, under the terms of the law. Indeed, justice may not be denied because of an insufficiency of economic means or undue delay of a ruling.

Right to a Fair Trial and Due Process The constitution upholds this right by guaranteeing that everyone should receive, within a reasonable timeframe and through a fair trial, safeguard of his or her legally protected rights or interests.

Right to Bail Bail may be granted by court decision for crimes punishable by a custodial sentence exceeding a maximum of 1 year. Each request is analyzed in terms of its merits.

Right Against Ex Post Facto Prosecution The constitution grants protection from ex post facto laws, stating that retroactive application of criminal law shall be prohibited unless the content of the subsequent law is more favorable to the defendant.

Right against Double Jeopardy Double jeopardy is prohibited in the Constitution. It stipulates that no one may be tried for more than once for the commission of the same crime nor be punished by a penalty not expressly foreseen in the law or with a penalty more severe than that established in the law at the time of the occurrence of the delinquent conduct.

Right to Language Interpretation While the constitution does not explicitly provide a right to language interpretation, it is implied in the provision which states that all citizens shall have equal social dignity and shall be equal before the law. This is because no one may be privileged, favored or disadvantaged, deprived of any right or exempted from any duty by reason of race, sex, ascendancy, language, origin, religion, social and economic conditions or political or ideological convictions.

Right to Habeas Corpus According to the constitution, any person detained or arrested illegally may petition the competent court for a writ of habeas corpus. Similarly, any citizen enjoying his or her political rights may petition for a writ of habeas corpus on behalf of a person illegally detained or arrested. The habeas corpus procedure is also regulated in the constitution, which states that the court must make a decision on the petition for a writ of habeas corpus within five days maximum and that the law shall grant the procedure expedience and overriding priority.

Capital Punishment The constitution bans the death penalty under any circumstance, under the right to be free from torture and inhumane or degrading treatment.

Right to Appeal The right to appeal is inviolable and guaranteed in the constitution for every indicted person.

Rights of Counsel

Right to Provide Representation See Right to Counsel and Effective Assistance and the Right to Present a Defense for the relevant provision in the constitution which grants a right to legal representation and accompaniment by an attorney.

Right of Access to the Client and Right to Confidential Communication with the Client The constitution allows the attorney the right to communicate personally and confidentially with his or her client, including when the latter is under arrest or is detained.

Means of Protecting and Enforcing Rights

The Constitution allows everyone the right to request from the Constitutional Court, by a writ of amparo, the protection of his or her constitutionally recognized fundamental rights, liberties and guarantees. Note that: (1) a writ may only be filed against acts or omissions of public authorities that are injurious to the fundamental rights, liberties and guarantees, once all other means of ordinary appeal have been exhausted; and (2) it would be of an urgent nature, and its procedure must be based on the principle of summary treatment. All citizens have the right to demand, under the terms of the law, compensatory damages for the violation of their rights, liberties, and guarantees.

Guarantees are also in place for rules and resolutions that the Cape Verdean government is seeking to adopt. The rules and resolutions which violate the provisions of the Constitution or the principles therein enshrined are regarded as unconstitutional. The Constitutional Court may request a preventive review of the constitutionality in any international treaty or agreement referred for ratification, or any provision of legislation that is intended to be promulgated as a law, legislative decree, or decree-law. If the Constitutional Court rules in favor of the unconstitutionality of a rule contained in an international treaty or agreement, it must not be ratified by the President of the Republic, who shall return it to the organ that had approved it. The same applies to an unconstitutionality ruling for any legislative act, whereby the instrument must be vetoed by the President of the Republic and returned to the organ that had approved it.

Pre-Trial Procedure

Inspections and Searches

The Code of Penal Procedure of Cape Verde provides rules on inspections and searches.

Firstly, when there are signs that a person is concealing on his person items that relate to a crime or that may serve as evidence, a search shall be ordered. Secondly, when there are signs that the items referred to previously, or the accused or any other person who is to be detained, are situated in a private location or a location to which the public does not have free access, a search shall be ordered. Also, searches shall be authorized or ordered by the competent judicial authority.

However, an exception is made when inspections and searches are conducted by police bodies concerned with criminal investigations when:

(1) the crimes are connected with terrorism or criminal organizations, are punishable by a maximum penalty of more than 8 years imprisonment, committed with violence or the threat of violence, or suspects who pose an imminent flight risk; and

(2) if there is sound reason to believe that any delay may pose a serious and immediate danger to life, physical integrity, freedom, or the survival of the constitutional rule of law in Cape Verde.

Formalities exist, in that a copy of the order shall be given to the person concerned before the inspection is carried out, except in exceptional cases with serious or risky crimes as above. The same applies to searches of premises or vehicles, and where the person who has access to the premises or vehicles to be searched is not available the copy is to be given to a relative, neighbour, a building attendant, or someone substituting for them. If the inspection or search objective is to obtain one or more specific items, the judicial authority may order that they be surrendered. Upon compliance, the search shall not take place unless it is considered useful to advance the investigation.

Various rules apply to the search of specific premises.

Search of homes – this may be ordered or authorized only by a judge. Alternatively, it may be ordered by the Ministry of the Public Prosecutor or police bodies which are concerned with criminal investigations in the event that a person is apprehended in the act of committing a crime or for the purpose of rendering assistance. It is not permissible to conduct a search of a home before 7 o’clock in the morning or after 8 o’clock in the evening.

Search of professionals’ offices, including lawyers and physicians – the search of the offices of professionals who have a legal or statutory requirement of secrecy must be supervised by the judge in person, unless it be deemed invalid. Before the search is conducted, the judge shall also notify the president of the corresponding professional association (if applicable) so that he or his representative may be in attendance. For instance, in the case of a search of a government health facility, the notification shall be made to the director of the facility or his legal deputy.

Search of media premises – must be supervised by the judge in person, unless it is deemed invalid. Shall ensure that the investigations and activities will have no impact on the free exercise of the profession of journalism and will not prevent or cause an unjustified delay in the dissemination of information.

Search of university facilities – must be supervised by the judge in person, unless it is deemed invalid. The senior official of the facility in question or his representative must be in attendance.

Seizures

Pursuant to a reasoned decision by a judge or the Ministry of the Public Prosecutor, items may be seized that have been used or were intended to be used to commit a crime, or that represent the proceeds, result or gain from the commission of a crime, as well as any items that may have been left by the perpetrator at the scene of the crime and any other items that may be used as evidence.

The seizure shall take place with a judicial authority in attendance.

Police bodies concerned with criminal investigations may make seizures as a result of searches or inspections in accordance with the provisions of this Code or when there is urgency or when a delay in obtaining evidence poses a risk, and accordingly, such a seizure must be confirmed by the competent judicial authority within 48 hours, unless it be deemed invalid. The person concerned shall be given a copy of the decision if he is present when the seizure takes place.

The items seized shall be kept together with the case records when this is possible or, when it is not possible, they shall be entrusted to the safekeeping of the court official assigned to the case or to a depositary, with full particulars being recorded in the case records.

Any seizure authorised, ordered or confirmed by the Ministry of the Public Prosecutor may be challenged before the competent judge within a period of five days. A challenge shall be decided upon independently, and if the challenge is upheld, the seized items shall be returned.

Correspondence, such as letters, parcels, postage stamps and related items, and telegrams, may only be seized if so authorized or ordered by a judicial decision and there are sound reasons to believe that:

The correspondence was sent by the suspect or addressed to him, even if under some other name or through some other person;

A crime has been committed that is punishable by a maximum penalty of more than 3 years imprisonment;

The seizure will be highly worthwhile in order to uncover the truth or provide evidence, lest the seizure be deemed invalid.

Note that it is prohibited to seize or in any other way monitor correspondence exchanged between an accused and his lawyer, except in the case of correspondence with respect to a criminal deed for which the lawyer has been accused.

When the seizure is performed not by the judge, that entity must immediately turn over the items seized to the competent judge without opening the correspondence or gaining knowledge of its contents. If the judge considers the seized correspondence to be relevant evidence, he shall include it with the case records. Otherwise, he will return it to its rightful owner, and is bound to maintain the secrecy of the contents of the seized correspondence where it was of no interest as evidence.

Court Procedures

Pre-Trial

Following arrest, one must appear before a judge within 48 hours of detention. The judge will decide whether there is a case to answer to and if so, whether you should be released on restrictive conditions or kept in custody pending further enquiries. Note that any time spent on remand counts as served prison time and is deducted from any future sentence that may be handed down.

Meanwhile, an inquiry is launched. This is the first stage of the criminal investigation carried out by the Judiciary Police in collaboration with the Public Prosecutor. The police investigation can last for several months and depends on the complexity of the case. At the end of this phase, the Public Prosecutor will either file the case (arquivamento) due to insufficient evidence or inability to identify the perpetrator, or formally press charges (acusação).

The victim who constitutes an assistant or the defendant can request a preliminary hearing if they disagree with the decision of the Public Prosecutor at the end of the inquiry stage. The aim of the preliminary hearing is to determine whether the case should go to trial or be dismissed.

Trial

On the day of the trial, the parties are taken to the court where the case is being heard. This will normally be the court closest to where the crime allegedly took place. Trials can be heard by a single judge or a panel of 3 judges. Crimes of a sexual nature are tried in private before a judge, or, at the request of the accused or the assistant, a collective court may be held for offenses punishable by a sentence of more than eight years). There are normally no jury trials in Cape Verde.

The state prosecutor will be present, together with the lawyers and an interpreter if the parties do not speak Portuguese. A court clerk will also be there. Hearings are public unless otherwise decided by the presiding judge.

Witnesses for both the prosecution and the defense will be called one by one. They will not be allowed in the courtroom until they are required to give evidence.

If the trial cannot be concluded in one day, it will continue the next working day.

Sentencing

On the last day of the trial, the judge will either read the verdict or set a date for the court to reconvene for the verdict to be read. The defendant will be present when the sentence is read.

Sentencing is codified in law and varies according to the type of crime and the circumstances in which it was committed. The attorney is best placed to advise the defendant on the minimum and maximum sentences.

For example, if found guilty of rape or sexual assault with penetration, the defendant can be punished with a prison sentence of 4 to 10 years. The prison sentence will be 7 to 14 years if the victim is a minor or under 16. The prison sentence can be further increased if the crime results in pregnancy, serious damages to your physical and emotional integrity, the transmission of a contagious, serious or incurable disease, the incapacity to reproduce, or the suicide, attempted suicide or death of the victim.

Appeals

The defendant may appeal through their lawyer against any conviction within 15 days of sentencing. If the appeal is admissible, the court will pass it up to the Court of Second Instance or Appeal. In certain circumstances, a sentence that has become final can be reviewed by the Supreme Court of Justice. The state prosecutor may also appeal if they consider that the conviction is too lenient.

International Sources of Defendants Rights

The Constitution of the Republic of Cape Verde upholds the rights and obligations of the general public.

International sources of human rights primarily stem from the international human rights treaties to which Cape Verde is a party. These United Nations treaties are listed below.

Treaty	Introduced	Ratified
Convention on the Prevention and Punishment of the Crime of Genocide	1948	2011
International Convention on the Elimination of All Forms of Racial Discrimination	1966	1979
International Covenant on Economic, Social and Cultural Rights	1966	1993
International Covenant on Civil and Political Rights	1966	1993
First Optional Protocol to the International Covenant on Civil and Political Rights	1966	2000
International Convention on the Suppression and Punishment of the Crime of Apartheid	1973	1979
Convention on the Elimination of All Forms of Discrimination against Women	1979	1980
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	1984	1992
Convention on the Rights of the Child	1989	1992
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty	1989	2000
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families	1990	1997
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women	1999	2011
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict	2000	2002
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography	2000	2002
Convention on the Rights of Persons with Disabilities	2006	2011

Note that the following treaties were signed but not ratified.

Treaty	Introduced	Signed
International Convention for the Protection of All Persons from Enforced Disappearance	2006	2007
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights	2008	2011

The following treaties have not been signed by Cape Verde.

Treaty	Introduced
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity	1968
Optional Protocol to the Convention on the Rights of Persons with Disabilities	2006
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure	2011