GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:
Over the past two months, the French Tribunal de Grande Instance in Paris (the principal trial court) heard evidence in the case against Teodoro Nguema Obiang Mangue (known as Teodorin), on charges of corruption and money laundering, among other allegations. Teodorin is the son of Teodoro Obiang Nguema Mbasogo, the long-time – and notoriously corrupt – President of Equatorial Guinea, a resource-rich country that also has some of the most widespread poverty in the world. Yet Teodorin, who is currently Vice President , owns vast real estate in Paris, a private jet, a yacht, and a fleet of vintage and modern automobiles, among his other known assets. This case has been discussed extensively on this blog (see here, here, here, here, here, here, here, and here), but it’s useful to recap how the case came to trial in the first place:
The case against Teodorin was primarily the result of diligent efforts by NGOs, including the French anticorruption group Sherpa and the French chapter of Transparency International (TI). In 2007, Sherpa and others filed a complaint with the Public Prosecutor in Paris alleging that the ruling families of Equatorial Guinea, Angola, Burkina Faso and the Republic of the Congo held assets in France that were not the fruits of their official salaries. After a brief investigation, the Public Prosecutor dismissed the claims. Several of the NGOs, joined in some instances by citizens of the countries in question, then used a French procedure known as constitution de partie civile to cause a criminal investigation by an investigating magistrate (juge d’instruction). This effort was opposed by the Public Prosecutor. A Court of Appeals initially upheld the prosecutor’s position and dismissed TI’s intervention, but in an important 2010 ruling, the French Cour de Cassation (Supreme Court) ruled that TI was a proper partie civile authorized to instigate the criminal investigation. Ultimately Teodorin was bound over for trial, now with the support of the Public Prosecutor (as well as the continued active participation of TI and other NGOs). A decision is expected in October.
The procedures that brought Obiang to trial are interesting because they highlight four important differences between French and US criminal procedures, and more generally illustrate several legal deficiencies, in countries like the United States, that often hinder the worldwide fight against transnational corruption:
- First, French law embraces a form of so-called “universal jurisdiction,” under which a person found in France can be prosecuted for certain kinds of acts committed outside of the country. France’s law on universal jurisdiction was most recently revised in 2010.
- Second, French law on overseas bribery – adopted in 2000 following the country’s accession to the OECD Anti-Bribery Convention – criminalizes both “active” and “passive” bribery – that is, both the giver and the recipient of a bribe can be prosecuted. While the UK Bribery Act, among others, criminalizes both active and passive bribery, the US Foreign Corrupt Practices Act (FCPA) only addresses active bribery—that is, bribe-giving—rather than bribe taking. Presuming a French court has jurisdiction over a defendant like Teodorin, he can be prosecuted for taking bribes.
- Third, France, along with some other countries in Europe and elsewhere, gives presumed victims the formal standing of parties civiles, which means that they can be actual parties to a criminal investigation and trial. They can commence an investigation even if (as here) opposed by the public prosecutor; they participate in all aspects of the investigation (and through their attorneys are given access to the official investigative file); they are parties at the trial; and they can seek and be awarded damages at the same trial that considers the guilt of the accused.
- Fourth, the French Code of Criminal Procedure provides that in certain instances, found by the Supreme Court to be applicable in this case, a pre-existing NGO with a stated interest in a subject matter may have standing to act as a partie civile in – and thus be a formal party to – a criminal proceeding.
Taken together, these procedures—which depart in a number of important respects from the U.S. approach to criminal justice—offer useful responses to several problems with current efforts to combat overseas bribery.
- First, virtually all of overseas bribery prosecutions in industrialized countries focus on the so-called “supply side” of corruption, that is, on bribe givers but not recipients. As noted, the FCPA only criminalizes giving or offering a bribe, not taking one; and even in those countries where “passive bribery” is criminalized, overseas passive corruption is rarely prosecuted.
- Second, the French partie civile procedure, enhanced by organizational standing provisions, provides a real and important voice to victims of corruption. Bribery is not a victimless crime: it deprives citizens of the affected countries of public funds that are theirs, and undermines the legitimacy of government. Organizational standing is particularly significant when essentially the entire population is a “victim.” Yet victims have no formal role in US bribery prosecutions, and are rarely even heard.
- Third, victims in developing countries often have little or no ability to pursue criminal or other remedies in their own jurisdiction; their active participation in the criminal pursuit of corrupt leaders in countries with some form of “universal jurisdiction” may be their only means of obtaining justice.
The case against Obiang is a visible step toward a more participatory form of international criminal justice, but it is hardly the first. In May 2016 a Special Chamber sitting in Senegal convicted the former president of Chad, Hissène Habré, of crimes that he committed in the 1980s, when he was President. (The evidence showed that he had a hand in the murder of tens of thousands, in systematic rape, and in widespread torture, as well as rapacious looting of Chad’s treasury.) The Habré trial has appropriately been praised as a model for African justice, but it was also the result of more than a decade of hard work by Chadian victim associations, supported by international NGOs such as Human Rights Watch, exercising their procedural rights as parties civiles–without which it is almost certain that no prosecution would have occurred.
There is occasional debate about whether corruption, or at least so-called “grand corruption,” should be the object of formal international prosecution at a tribunal modeled on the International Criminal Court (see here and here). Yet ICC proceedings have been notably cumbersome and slow, with few results. Universal jurisdiction trials such as in the current Obiang case, or essentially ad hoc proceedings such as the prosecution of Habré in Senegal, propelled by victim participation, may offer a more flexible and practical approach.