GAB is pleased to publish this account of the first day of the Obiang trial by Shirley Pouget, a French lawyer observing the proceedings on behalf of the Open Society Justice Initiative

The worldwide fight against grand corruption took a giant stride forward Monday June 19 with First Vice President of Equatorial Guinea Teodoro Nguema Obiang Mangue standing trial for corruptly diverting millions from the national treasury.  Known to cronies as Teodorin, the case appears to be the first ever where a high-level official, while in office, is called to account for grand corruption before a foreign court. The precedent setting case, the culmination of a decade of determined struggle by French and Equatorial Guinean civil society, is being heard before the Tribunal Correctionnel in Paris.

As the trial opened, the courtroom overflowed with journalists, civil society representatives, and Equatorial Guineans in exile: we were all there to see if indeed a powerful politician whose corrupt activities have left his nation in penury would be held to account.  The three judges hearing the case, all women, took their seats at 1:30. The presiding judge opened by recalling that the accused was before the court on charges of misappropriation of public funds, complicity in the misappropriation of public funds, misuse of corporate assets, complicity in the misuse of corporate assets, and the concealment of each of these offences.  She explained that the court had jurisdiction because each offense, or an element of each, was committed in France.  She then expressed concern that defense counsel had only provided answers to the charges a few days before the trial began.

The defense launched into a series of objections to the commencement of the trial that consumed the entire afternoon hearing.  Teodorin’s high-priced lawyers argued that 1) the case should be stayed pending a final decision by the International Court of Justice in a case between France and Equatorial Guinea, 2) the magistrates’ decision to refer the accused for trial was illegal, and 3) a coalition of Equatorial Guineans should not be permitted to participate in the case as a civil party.  They also raised an unexpected claim based on a highly technical reading of the charging document.   

Those who know only common law trials will find French criminal proceedings surprising in several ways.  Most importantly for the Obiang prosecution, in France, as in many civil law countries, victims of a crime can initiate a prosecution.  Here, had it not been for vigorous advocacy by French NGOs on behalf of Obiang’s victims, the citizens of Equatorial Guinea, the case likely would never have been brought.  A second difference between French and common law is that in France a crime victim can participate in the preparation and trial of the case. “Parties civile” can suggest leads during the investigation phase, offer evidence at trial, and even have questions put to witnesses.  Moreover, and again like many civil law countries, French law economizes on judicial resources.  Rather then person injured by reason of defendant’s crime having to bring a separate action against the defendant to recover damages, as in common law countries, in France, in the event of conviction the judge in the criminal case can award victims damages as part of his or her decision.

Although Obiang had more than adequate notice of the trial and has far, far more than sufficient resources to come to Paris to attend, when the trial opened Monday he was nowhere to be found.  French law permits defendants to be tried in absentia, and after his lawyers failed to explain why he was not there, the trial proceeded without him.

Below is a summary of the arguments defense counsel raised on day one in an effort to derail the trial along with the judges’ decisions

1) Obiang’s request to stay the case pending a final decision of the International Court of Justice

Teodorin’s lawyers first asked that the proceedings be stayed until the International Court of Justice ruled in the case Equatorial Guinea had brought against France, a case that repeated arguments Teodorin had raised, and lost, before French courts.  One argument counsel advanced involved the confiscation of a building Teodorin allegedly owned in Paris.  The French government had tried to secure an order from a French court blocking its sale or transfer pending a decision in the criminal trial; Equatorial Guinea had secured an interim order from the ICJ preventing the French government from doing so.  Defense counsel urged the judges to wait to proceed until the ICJ issued a final ruling on the attempted blocking issued.

A second ICJ-related argument rested on Teodorin’s claim of immunity from French criminal process as a public official of another sovereign state.  While the French courts had rejected it, the Equatorial Guinea government renewed the argument before the ICJ.  Defense counsel even warned that if the court proceeded with the trial and the ICJ later held Teodorin was held to be immune, the court could cause France to be in breach of international law. Indeed, they raised the specter that the government of France might even be referred to the United Nation’s Security Council if the court’s decision was at odds with the ICJ’s.

The prosecution and the civil parties both found the concerns about French observance of international law amusing, if not ironic.  The government of Equatorial Guinea is by all accounts an international law scofflaw.  It is not party to any major international convention and it has openly flouted basic norms of human rights recognized under international law.

Transparency International counsel William Bourdon made clear that under French law the fact of a pending ICJ decision did not preclude the court from proceeding.  He argued that if the court ordered the confiscation of property subject to the ICJ’s preliminary ruling, the only effect would be to delay the seizure until both national and international proceedings were concluded.

The tribunal found the defense arguments unconvincing and rejected its request to delay the case for this reason.

2) Objection to the legality of the investigative magistrates’ decision to refer the accused to trial

Teodorin’s lawyers’ second claim was again based on the claim he was immune from prosecution under French law.  This time they contended that the initiation of the criminal proceedings was contrary to French law, and therefore, pursuant to Article 385 of the French Code of Criminal Procedure, the tribunal should refer the case back to the prosecution for dismissal.

Their immunity argument was that whatever illegal conduct he might have been involved in in a personal capacity, Teodorin had been appointed Vice President of Equatorial Guinea in June 2016.  As a result, today he enjoys absolute immunity from prosecution.  Counsel even sought to bring race into the picture, arguing that no country would dare bring criminal charges against a sitting Vice-President of the United States of America; this could only happen against “a black defendant from a small African country.”  (GAB note: Counsel was apparently unaware that Baltimore federal prosecutors did indeed bring criminal charges against a sitting U.S. Vice-President, Spiro Agnew, with the result that he resigned from office in disgrace.)

The civil parties replied that Teodorin was appointed Vice President of Equatorial Guinea, an office that did not exist before his appointment, for the sole purpose of evading criminal prosecution in France.  Indeed, they had raised, and won, this argument during pre-trial skirmishes.  In April 2015, the Examination Chamber of the Paris Court of Appeals held that his nomination to the function of Vice-President was ‘a nomination of circumstance.’ Subsequently, the French Supreme Court (the Court of Cassation) upheld the ruling, dismissing Teodorin’s immunity claims in a landmark decision because “his functions are distinct from those of a head of state, a head of government or a minister for foreign affairs.”  It held that Teodorin could not benefit from functional immunity because “all the offenses of which he was accused […] were committed for personal purposes” (Cass. crim., 15 December 2015, n° 15-83156).

The prosecution noted that the question of Teodorin Obiang’s immunity has been decided by the French courts and is therefore irrelevant for the purpose of the continuation of this trial.

The judges again sided with the prosecution and the civil parties and rejected counsel’s request for a stay on this ground.

3) Legality of the order to remand Teodorin to trial

To the surprise of courtroom observers, and apparently desperate to find a way to postpone or suspend the trial,  counsel argued that Teodorin’s referral to trial for prosecution included acts not in the indictment issued in 2014. The lawyers pointed to minor discrepancy between the language in the indictment and that remanding Teodorin for trial. They contended that the use of the adverb ‘notably’ on page 35 of the later document changed the meaning of the sentence to include wrongful acts that were not covered by the indictment.

Paragraph 35 of the later document reads:

“Considering that the investigation has resulted in sufficient evidence against Teodoro Nguema Obiang Mangue of having in Paris and the national territory, during 1997 and until the month of October 2011, in any case for a period not covered by the statute of limitations, contributed to concealed investment operations or the conversion of indirect or direct proceeds of a crime or delict, in this case misuse of social assets, embezzling public funds, breach of trust and corruption, by acquiring several moveable and immoveable properties and paying for numerous services, notably through the assets of EDUM, SOCAGE and SOMAGUI FORESTAL [EQ companies].”

The acts in question relate to the purchase of property located on Avenue Foch in Paris, payment of which was not made through a company but by Teodorin himself. The lawyers argued that the court was not competent to ascertain whether the conduct was wrongful or not until the investigating magistrate’s order is corrected.  Pursuant to Article 184-2, the defense requested the tribunal to refer the case back to the investigative magistrate.

The judges reserved decision on this point until the next trial day, Wednesday, June 21. At that time it will also consider whether a coalition of Equatorial Guinean’s opposition parties can participate as a civil party.

I will continue to provide GAB readers with regular updates on the trial.  À bientôt!