GAB is pleased to publish this account and analysis by Shirley Pouget and Ken Hurwitz of the Open Society Justice Initiative of the final arguments of Equatorial Guinean Vice President Teodoro Nguema Obiang’s lawyers at his Paris trial for what is in effect kleptocracy.
Teodoro Nguema Obiang Mangue’s trial concluded July 5, 2017, with closing arguments by his defense counsel. The trial marks a major milestone in the struggle to ensure accountability for grand corruption, even when committed by those at the highest political levels. A spicy mixture of high principle, juridical gravitas, and sophisticated argumentation on intricate issues of pressing urgency in the real world, the trial also contained moments of wrenching emotion and undignified, even scandalous, claims and insinuations.
The final day was devoted to arguments by Teodorin’s lawyers: Emmanuel Marsigny, Equatoguinean jurist Sergio Tomo, and Thierry Marembert. In sum they claimed i) that their client didn’t steal enormous sums of money from the people of Equatorial Guinea, ii) that even if he did, the theft wasn’t illegal under Equatorial Guinean law, and iii) that even if he did steal the money and it was a violation of EG law, a French court did not have the right to try him for it. Their arguments mixed misleading and often downright false statements of the evidence with strained and fanciful interpretations of the law, all seasoned with dark suggestions that the trial was about race and politics rather than the massive theft of resources from the citizens of Equatorial Guinea.
Emmanuel Marsigny: This is a political trial in a climate of shame, insults and stigmatization.
“It has been difficult to get our arguments across in this climate of shame, insults and stigmatization,” began Teodorin’s lead counsel. “He has been primarily reproached for being the son of his father. Do we choose our parents? Do we choose the way we are raised? What has my client done to deserve such slander and contempt? A lavish way of life? Is that a reason for not giving his defenses serious consideration? We, as defense lawyers, have been personally insulted too. We have been identified with our client, while discharging our duties as defense counsel, treated as if we lawyers were the ones who committed the alleged crimes.”
Marsigny reiterated his arguments about the legality of Teodorin’s private business, the means the evidence shows he used to steal much of the money. “The funds were legally earned in Equatorial Guinea and transferred into French bank accounts. This trial is historic because it interferes with the internal affairs of a foreign sovereign state. Teodorin is supposed to have laundered €150 million in France between 1997 and 2011, but to prove the crime of money laundering the prosecution must establish the illicit origin of the funds. There is nothing to prove that the funds were proceeds of crime. The accused’s American lawyers have established that he legally generated $300 million revenue between 1994-2009 out of business carried out by his companies—SOFONA, SHIMMER and SOMAGUI.”
“All of these activities are perfectly legal in Equatorial Guinea, but no one seems to care! The prosecution has failed to produce evidence and witnesses to establish the underlying offenses. Where are the bankers? Where is the manager of the decorating company who allegedly undertook €12 million refurbishment work at the mansion on Avenue Foch? Where is Christies Auction House [from which Teodorin purchased significant art works and other luxury good]? Where are the fashion companies? This entire case file is based on press articles.” [Authors’ note: The case file is comprised of thousands of pages of information – including inter alia financial statements, invoices, affidavits and depositions from numerous directly involved witnesses.]
He continued: “The investments made in France have never been contested. Teodorin has not used straw men or offshore accounts.” [Authors’ note: This point would seem highly debatable. As France explained in a communication to the International Court of Justice in October 2016, the Avenue Foch property was in fact the property of five Swiss companies, ownership of which was held by Teodorin “in the form of bearer [unregistered] shares.” France’s view is that these Swiss and certain French companies “served as a screen between Mr. Teodoro Nguema Obiang Mangue and the townhouse at 42 Avenue Foch, in relation to the acts of money laundering of which he is suspected.”]
Marsigny argued that Teodorin had purchased luxury goods, which he paid for himself or from accounts of the companies he owned. Furthermore, legally, this case was built on no applicable law, but only an erroneous judicial interpretation of article 432-11 of the Penal Code (corruption of public officials). (More on defense’s constitutional objection here.) “How can the tribunal ascertain whether the acts — committed abroad — fall within the scope of French law without trying them? Is it not legitimate to question whether the judicial interpretation given to the provision upon which the case is based complies with constitutionally protected norms? Your tribunal dismissed our constitutional objection (Question Prioritaire de Constitutionalité). We will appeal that decision.” [Authors’ note: Technically the decision to dismiss a QPC for lack of seriousness cannot be appealed. However, Law 2009/1523 of 10 December 2009 on the Question Prioritaire de Constitutionalite does not preclude the question from being raised a second time before the Court of Appeal.]
Responding to the video Teodorin had posted on YouTube depicting the trial as a “masquerade” with no legal basis and a conspiracy against the government of Equatorial Guinea and Africa, Marsigny continued: “You have to put yourself into his shoes. What should he think of this trial? This is the first time that a high-ranking official faces trial before a foreign jurisdiction. He feels that he has been the victim of an international conspiracy…. Of course, we challenged the investigative magistrates’ indictment order on grounds of personal immunity, as, in effect, their decision gave some kind of universal jurisdiction to French courts.” He continued ironically, summarizing his understanding of the Civil Parties’ position: “Our client is the son of an African Head of State; he has money; he is necessarily corrupt. So yes, we filed a few defamation claims. How dare we attack the press? they ask. What would they expect from defense counsel? The defense is treated as illegitimate simply for discharging its duties, just because the accused is supposedly morally reprehensible. To what extent will you [the tribunal] be able to put aside the international media campaign against our client when issuing your judgment?”
Speaking of the witnesses, Marsigny noted: “The civil party went so far as to claim that German Pedro Tomo was the victim of an attempted murder ordered by President Obiang. A judgment was even supposedly issued by Spanish Courts. This is a lie! [Authors note: Not so. The trial and conviction of the individuals for the attempted the assassination were well publicized in Spain. The 9 April 2007 judgment of conviction issued by the Audiencia Provincial de Madrid is available here.]
Marsigny continued: “Our client called one single witness, Simon Mann, to testify. He did so with the view to provide the tribunal with important contextual elements. Mann indicated that in 2007 William Bourdon sent an email to Lebanese oil millionaire Elie Khalil, in which he expressed concerns over ‘the behavior of Teodorin.” [Authors note: See our earlier post on Simon Mann’s testimony here.]
The civil party responded ‘it’s a fake, it’s been filed maliciously’. But the question that matters is whether William Bourdon knows the man who attempted to overthrow the government of Equatorial Guinea. Likewise, Daniel Lebegue, the representative of the civil party [Transparency International France], asserted that he did not know that Technip [a global engineering, construction and services company based in Paris] signed a USD$ 230 million dollars contract with the government of Equatorial Guinea. He even claimed that he was not aware that the company was charged in 2010 in the United States for multiple violations of the Foreign Corrupt Practice Act. How credible are these witnesses?” [Authors’ note: Mr. Lebegue is a long-time non-executive director of Technip.]
“You have been asked to render a robust judgment. But in fact, you are asked to bend the law and international norms. We want to make clear that our client does not have any contempt for the French justice system; he simply wants the law to be applied.”
Sergio Tomo: Equatorial Guinea law did not criminalize diversion of government funds by senior officials.
Equatoguinean lawyer Sergio Tomo took the floor next. Tomo reminded the court of the defense argument that the Equatoguinean Law on Civil Servants precludes senior members of government from being prosecuted for diversion of public funds. Thus, in effect, it is no crime in Equatorial Guinea for a government minister to divert funds from the government. [Authors’ note: For more information regarding this extraordinary claim about EG law, see our earlier post.]
Thierry Marembert: There is no evidence of a crime and no relevant predicate offenses in French law.
Counsel Thierry Marembert constructed his closing around two main arguments: 1) lack of evidence and 2) inapplicability of French law to the alleged predicate offenses to money laundering.
Lack of evidence
For the defense, the prosecution has failed to establish the illicit origin of funds — the case file mostly relies on circumstantial and contextual elements; not on hard evidence that would show that the contested funds are proceeds of crime. “Technically, the illicit origin of funds can only be presumed if the operations of laundering are concealed (Article 324-1-1 of the Penal Code). That is not the case here. Hearsay or NGO reports are not evidence. The tribunal will have to establish a causal link between alleged acts of laundering in France and the underlying criminal conduct for each operation over a period of 14 years.”
Inapplicability of French law of the time to the alleged predicate offenses
Marembert reminded the Court that France is party to a number of relevant international conventions, including the United Nations Convention against Corruption. It provides:
“The offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this article had it been committed there.” [Authors’ note: As discussed in our post on the constitutional objection, the defense is claiming that the legal element of the predicate offenses of money laundering — under which Teodorin was charged — is lacking. It challenges the judicial interpretation of article 432-11 of the Penal Code (corruption of public officials), asserting the Cour de Cassation was wrong to convict a foreign plaintiff of money laundering at a time when the offence of corruption of foreign public official(s) was not wrongful conduct prohibited in French law.]
Thierry Marembert advanced similar legal reasoning with respect to the offence of misappropriation of public funds and abuse of corporate assets. The wording of Article 432-15 of the Penal Code and Article L241-3 of the Commercial Code only prohibit the diversion of French public funds and abuse of corporate assets by French public officials. In other words, the misappropriation of foreign public funds and corporate assets would not fall within the scope of the law. “The only alleged predicate offense that was actually prohibited in French law as criminal conduct at the time of the conduct at issue is the offense of abuse of trust. Do you have any evidence establishing acts of abuse of trust between 1997 and 2011?” [Authors’ note: An “abuse of trust” (abus de confiance) is prohibited by Article 314-1 of the French Penal Code, which defines it as the “the act by a person who diverts, to the detriment of another, funds, securities – or any kind of assets that have been consigned to that person and that he or she has accepted on condition to return them, to represent them or to handle in an agreed manner.” The allegations of “abus de confiance” in this case relate to the defendant’s alleged diversion to his personal use of corporate assets, this constitutes an abuse even if the companies involved are wholly owned by him.]
Defense counsel concluded by reminding the tribunal that their client has never been convicted for corruption in the U.S. “Teodorin settled on charges of bank fraud and assets were confiscated on that ground. All corruption charges were dismissed for lack of evidence.” [Authors note: Highly misleading at best. See our account of day 3 of the trial where we explain the disingenuousness of this assertion.]
The Presiding judge adjourned the proceedings.
Whatever the outcome, this was a historic trial of global significance that gave the victims of corruption and lawlessness in Equatorial Guinea a first glint of their day in court. It would not have happened but for the dogged initiative, creativity and (in several instances) true courage of Transparency International France, Association Sherpa, William Bourdon and the civil parties’ legal team, the courageous witnesses attesting to the abuses in Equatorial Guinea, and the many colleagues, activists, experts, supporters and concerned citizens who in a myriad of ways made the trial possible. No matter the outcome, that it took place is itself an enormous victory for Equatoguineans and for anticorruption advocates globally. It also sends a powerful message to others in high office that so far as serious accountability for grand corruption and kleptocracy is concerned, French courts are now open for business.
We will provide GAB readers with an analysis of the ruling. It is expected October 27, 2017. Merci & à bientôt.