GAB is pleased to publish this account and analysis by Shirley Pouget and Ken Hurwitz of the Open Society Justice Initiative of the concluding arguments the civil parties and the prosecution made at the trial of Equatorial Guinean Vice President Teodorin Nguema Obiang.
The July 5th proceedings in the Obiang trial opened with the court rejecting the defense request that it be allowed to pursue its claim that the prosecution was unconstitutional. It closed with the state prosecutor asking the court to find Teodorin guilty, sentence to him three years in prison, fine him €30 million, and confiscate all of his assets located in France. In between the two civil parties – CORED, a coalition of Equatorial Guinean political parties, and Transparency International-France – presented their arguments in support of conviction.
The defense’s constitutional objection (Question Prioritaire de Constiutionalite) was rejected on the grounds it was not serious. The three judge panel ruled that the question the defense sought to raise, the applicability of French law to hear and try a money laundering case when the proceeds of the predicate offense was committed abroad had already been settled (here for details).
CORED arguments in support of conviction
The Presiding Judge turned the proceedings over to Jean-Pierre Spitzer, counsel for CORED to present its concluding arguments. CORED is a coalition of 19 Equatoguinean political parties. Its position is that it is acting on behalf of the victims of Teodorin’s corrupt acts in Equatorial Guinea, the citizens of the nation, and since political parties represent citizens, it is entitled to be heard as a civil party.
The CORED attorney began by recalling the defense’s narrative. “Teodorin Nguema Obiang has portrayed the French proceedings as a masquerade, a political trial against Equatorial Guinea and Africa. The truth is charges were not brought against the Republic of Equatorial Guinea or its President, but against one single individual for of having committed a crime in France. To state the obvious, Equatorial Guinea is an avowed dictatorship. It is also obvious that the proceeds from the misappropriation of public funds were laundered in France.”
Counsel stated again that French courts have jurisdiction to hear cases of money laundering regardless of where the underlying offence was committed. “The law only requires the underlying acts taking place outside French jurisdiction be defined as a crime under French law [that is, had Teodorin committed the acts in France, he could have been prosecuted for violating the French penal code].”
Turning to the defense’s attempts to prevent CORED from participating in the case as a civil party, CORED counsel Spitzer asserted: “CORED has international standing. On 3 August each year, the Coalition honors the memory of 310 victims of the regime. The tribunal really has no alternative to accepting the request of CORED to act as a civil party in this proceeding.”
Responding to the defense contention that as First Vice-President Teodorin is personally immune from criminal prosecution, counsel for CORED argued that the objection contravened the principle that a matter already judged cannot be tried again. The French courts had already rejected the argument, he said. The Cour de Cassation held in 2015 that Teodorin could not claim the benefits of any personal immunity because his official functions “were not those of a Head of State, Head of Government or Minister for Foreign Affairs”; nor could he benefit from functional immunity (protecting the official from proceedings based on acts committed within his or her official functions), to which all public officials are entitled, because “all the offences of which he was accused (…) were committed for personal purposes,” and bear no relation to his official functions. “[U]nder international law, holding a high-ranking office is by itself not enough to give the defendant the benefit of personal immunity. The mandate holder must effectively exercise important functions [falling within the prerogative of a sovereign State]. The post of First Vice-President is a shell.”
CORED’s counsel went on to note that “the accused did not refrain from exercising undue pressure [on those involved in the proceedings]…Witnesses — including Daniel Lebegue, the representative of the Civil Party Transparency International-France — were threatened.
He next summarized the evidence presented of Teodorin’s crimes. Roberto Berardi gave evidence that Teodorin used a business account to launder proceeds of corruption in the United States. Pedro German Tomo told the Court about the illegal commissions and criminal activities of Teodorin, owner of the company SOMAGUI FORESTAL when he was Minister of Agriculture and Forestry. All the companies owned by Teodorin are shell companies, which he used to transfer corrupt funds for his personal gain.
In contrast to the evidence of guilt, the defense called a single witness: a British mercenary who told the court that William Bourdon was involved in an attempt to overthrow the government of Equatorial Guinea, a slanderous testimony! The CORED lawyer then closed by calling for the court to impose punitive damages of €400,000 on Teodorin.
Transparency International-France’s arguments in support of conviction
William Bourdon, counsel for Transparency International-France, then took the floor. He began by challenging the way the defense tried the case: “The defense contravened all our principles, our common values. This morning, I wondered how I would plead. This trial is without any doubt historic. I have, however, never seen such a level of attack, unwarranted smears, defamation… against counsel for the civil parties, the civil parties themselves, and the witnesses. When I first had the idea in 2007 that the stolen assets could give rise to legal action in French courts and then filed the complaint, I could not have imagined what was about to ensue. […]
“This trial sends a clear message that in the 21st century, grand corruption will no longer go unpunished. Those in power will have to face justice for their wrongdoing. The defense has tried to depict this proceeding as a neocolonialist struggle – the justice of the ‘Whites’ against the ‘Blacks’. In fact, the accused enjoys enormous power, power which puts enormous pressure on the judges, whose decision in this case is so important.
“Law is a tool for social change. I am what we call an activist lawyer. I have been working on these proceedings since the beginning. For the accused, the ends justify all means. Financial and commercial crimes lead to crimes of blood. The obsession to stay in power leads to torture. The defense called a witness with the sole aim to discredit me personally. It produced a fake screenshot of an email, which was never sent. I will be filing a complaint for forgery.
“All the witnesses have been intimidated and threatened. The court was told that President Obiang hired two Colombian hitmen to murder witness Pedro German Tomo [his brother was mistakenly stabbed instead of him, and left with injuries]. When asked about reprisals, another witness, Delfin Mocache Massoko, testified: ‘I have been repeatedly threatened. We have been warned that all witnesses will pay dearly for testifying.’ People’s lives are at risk, threats are palpable. The atmosphere surrounding this case is detestable.”
He continued, citing former employees of Teodorin who had been cross-examined by the Investigative Magistrates during the instruction (investigation) phase. Didier Malyszko, Teodorin’s former butler, had stated: “Teodoro Nguema Obiang had the same lifestyle in France, in the USA and in Brazil. In three words: alcohol, prostitutes, coke [‘alcool, putes et coke].”
Like CORED’s counsel, Bourdon challenged the defense claim that French courts have no jurisdiction to prosecute money laundering committed in France when the predicate offenses were committed abroad. He cited the power of French courts, under Article 113-2 of the Penal Code, to apply French law to “offenses committed on the soil of the Republic.” [That provision additionally specifies that “The offense is considered committed on the territory of the [French] Republic once one of its constitutive facts has taken place on [French] territory.” (Emphasis added.)]
On the question of dual criminality, Bourdon cited the Explanatory Report to the Council of Europe Convention on Laundering, Search, Seizure, and Confiscation of the Proceeds from Crime and on the Financing of Terrorism to highlight the absence of a requirement under the Convention for States to provide for an exhaustive list of predicate offences. [The Explanatory Report also confirms that, under the Council of Europe Convention, predicate offenses committed abroad are fully acceptable for money laundering charges; moreover, prosecutors do not need to prove the technical elements of predicate offenses — nor, indeed, even to identify the specific predicate offense(s) allegedly committed, so long as “the predicate offence (whether domestic or foreign) [can] be established on the basis of circumstantial or other evidence.” (See paragraphs 99 – 102 of the Explanatory Report.)
Commenting on the argument according to which Teodorin could not be prosecuted on charges of misappropriation of public funds and conflict of interest because Ministers are not civil servants (“funcionarios”) under Equatorial Guinean law, Bourdon pointed out its absurdity: “Those in position of power would be immune from criminal prosecution. The defense argued that because Teodorin may have met with former President Obama, he could not have done anything wrong. As if a meeting with a foreign head of state were sufficient to be exempt from any liability! [….] The recent judgment of acquittal by the Malabo criminal court is a grotesque joke, a judgment made by little hands at daddy’s service. I call upon you the tribunal to render a robust and historic decision, which will send a powerful message [to kleptocrats around the world].”
State prosecutor’s arguments in support of conviction
Prosecutor Jean-Yves Lourgouilloux began by commenting on the video Teodorin had posted on Youtube. “The accused depicted the French trial as a masquerade of justice. He complained about how justice in rendered in France. He seems to forget that the French judicial system has allowed him to be tried in absentia, to be represented by a team of three lawyers who put forward absolutely all possible procedural objections — including submitting a “Question Prioritaire de Constitutionalite” — calling their witness etc… Prior to the trial phase, he did not deign to attend questioning by the police or Investigative Magistrates, when he was indicted. The least one should have expected is that he would have attended the trial in person. According to him, we are all conspirators: the Investigative Magistrates, the Cour d’Appel (Court of Appeal) and the Cour de Cassation.”
The Prosecutor continued: “The purchase of goods in Europe is not illegal. If the accused had been present, I would have explained the case file to him. What he is accused of is to have laundered proceeds of serious crimes on French soil [….] We have many “Teodorin Obiangs” at the Financial Crime Department of the Prosecutor’s Office. Likewise, I have a dozen cases involving foreign public officials who have used France to launder proceeds of corruption. For many years, we turned a blind eye on corruption and just let it happen. Kleptocrats were coming to France to purchase thousands of euros’ worth of jewelry because they knew that the risk of being prosecuted was minimal. There was a feeling of impunity — it is just like letting children do whatever they want; at some point it is just too late to react. This has been anything but a political trial. We are here to try this case according to law. We are not here to bring charges against the Republic of Equatorial Guinea. The defense has been entitled to the exact same rights as any other defendant in any other trial.”
Prosecutor Lourgouilloux made several legal arguments:
1) The immunity objection should be rejected.
He explained that Teodorin Obiang served as Minister of Agriculture and Forestry for about 15 years. He was appointed Second Vice-President of Equatorial Guinea shortly after the seizure of his assets in France and his indictment. He was promoted to the post of First Vice-President in charge of defense and security on 22 June 2016. These appointments to high ranking posts were only “nominations of circumstance,” to avoid criminal prosecution. The prosecutor reminded the court, that in any event, the question of immunity had already been heard and settled by French tribunals. [In 2015 the Court of Appeal had dismissed Teodorin’s application for dismissal on grounds that he did was not entitled to personal immunity, ruling that his position as Second Vice-President was a “nomination of circumstance.” In December 2015 the Court of Cassation upheld the Court of Appeal’s decision.]
2) French law is applicable to the establishment of predicate offenses to money laundering even if they have been committed abroad.
According to the prosecutor, there is no legal issue as to the applicability of French law to establish offenses committed abroad by foreign public officials as predicates to money laundering. “This is not a question of trying the underlying offenses. The prosecution has the burden to establish factual or circumstantial elements establishing predicate offenses and establish a link between the property being laundered in France and the underlying criminal conduct.”
3) The illicit origin of funds is established based on circumstantial and factual evidence contained in the case file.
The modus operandi of the underlying crimes was in this case relatively simple. The Accused transferred public funds into his personal bank account or used shell companies to transfer and launder the proceeds of corruption and other crime. International logging companies were forced to pay a “tax” to SOMAGUI FORESTAL to obtain authorization to export timber. He also used the business account of ELOBA Company to launder proceeds of corruption. Between 2005 and 2011, Teodorin bought jewelry worth €10,000,000, which he paid for himself or from accounts of one of his companies, SOMAGUI FORESTAL, SOCAGE or EDUM.
[On 28 September and 3 October 2011, French police seized 18 “supercars” belonging to Teodorin including two Bugatti Veyrons, a Maserati MC12, a Porsche Carrera GT, a Ferrari Enzo and a Ferrari 599 GTO. On 14 February 2012, French authorities began searching the Accused’s mansion located at Avenue Foch in Paris. By the time the search had concluded ten days later (23 February), the police had reportedly seized three truckloads of valuable, including, wine, suits, watches, shoes, artwork, and antiquities. The property itself was seized in July 2012.]
The Prosecutor reminded the Court that “from 2005-2007, Teodorin Nguema Obiang purchased €150,000 million worth of luxury goods, although he was on annual salary of €80,000. The Court was told that in Equatorial Guinea Ministers are permitted to conduct private businesses while holding a public office. “Could you imagine a French public official doing business in the industry he/she is meant to regulate?”
4) The sentence should reflect the seriousness of the crime.
As to sentencing, the Prosecutor recalled that the crime of money laundering is punished by up to five years’ imprisonment and €375,000 fine (Article 324-1 of the Penal Code). The sentence may be increased to up to 10 years and €750,000 fine when laundering was committed as part of an organized gang or was committed as part of a usual pattern or was facilitated by the exercise of a professional function (Article 324-2). In some circumstances, fines prescribed in Articles 324-1 and 324-2 can be increased to up to one- half the value of the assets laundered (Article 324-3).
In seeking a stiff sentence, the prosecutor has to have regard to the circumstances surrounding the commission of the crime as well as the personality of the accused (Article 123-24). For the Prosecutor, it has proven difficult to appraise the personality of the accused insofar as he did not attend the trial in person. “The accused hasn’t understood that his conduct was criminal.”
In light of the above, the prosecutor sought three years’ imprisonment, a €30 million fine and the confiscation of all assets located in France, including the mansion located on Avenue Foch.