Letter dated 26 October 2016 from the Agent of Equatorial Guinea to the Registrar
[Translation]
With reference to the case concerning Immunities and Criminal Proceedings
(Equatorial Guinea v. France), I have the honour to communicate to you the replies of
Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue at the public
sitting of 19 October 2016.
___________ Replies of Equatorial Guinea to the questions put by
Judge Bennouna and Judge Donoghue
[Translation]
During the public hearings on the request for the indication of provisional measures in the
case concerning Immunities and Criminal Proceedings (Equatorial Guinea v. France),
Judge Bennouna and Judge Donoghue put the following questions to Equatorial Guinea:
Judge Bennouna’s question
Judge Bennouna put the following question to Equatorial Guinea:
“In a Note Verbale dated 15 February 2012 to the French Ministry of Foreign
Affairs, which is included in the case file, the Embassy of the Republic of Equatorial
Guinea states that ‘the Republic of Equatorial Guinea has acquired a townhouse at
42 avenue Foch’, adding that ‘[t]he title to the property is in the process of being
transferred’. My question is as follows:
‘On what date did Equatorial Guinea definitively acquire that property title, and
1
did it register it at the Land Registry in France?’”
Reply
There are two components to the question: one regarding the date on which the building
located at 42 avenue Foch was definitively acquired, the other relating to registration at the Land
Registry in France.
Equatorial Guinea considers that it definitively acquired the title to the property located at
42 avenue Foch on 15 September 2011. That title was not registered as such at the Land Registry
in France.
*
1. Regarding the date on which the building was definitively acquired
1. On 19 September 1991, the building located at 42 avenue Foch in Paris was acquired by
the following Swiss companies: Ganesha Holding SA, GEP Gestion Entreprise
Participation SA, RE Entreprise SA, Nordi Shipping & Trading Co Ltd, and Raya Holdings SA.
On 18 December 2004, Mr. Teodoro Nguema Obiang Mangue became the sole shareholder of the
five Swiss companies.
2. On 15 September 2011, by way of an agreement on the transfer of shares and claims
between Mr. Teodoro Nguema Obiang Mangue, transferor, on the one hand, and the Republic of
Equatorial Guinea, transferee, represented by Mr. Miguel Edjang Angue, having the power of
attorney of the President of the Republic of Equatorial Guinea dated 4 September 2011, on the
other, Equatorial Guinea acquired the shares of the five Swiss companies which co-own the
building located at 42 avenue Foch in Paris, for a purchase price of thirty-four million euros
1CR 2016/17, p. 20. - 2 -
2
(€34,000,000) . At no point has it been contested that this transaction was conducted under normal
market conditions.
3. As the sole shareholder of these five Swiss companies, Equatorial Guinea became the
owner of the building located at 42 avenue Foch in Paris.
4. It is to be noted that this transfer of shareholder rights constituted grounds for the
amendment of the articles of association of the five companies, as a result of the conversion of
bearer shares into registered shares, in accordance with the minutes established on
19 September 2011 for each of the companies by Mr. Richard Rodriguez, notary in Geneva . 3
5. On 19 September 2011, the amendment of the articles of association relating to the
conversion of bearer shares into registered shares was duly recorded, for each of the five
4
companies, in the Commercial Register of the Canton of Fribourg .
6. On 19 September 2011, the chairman of each of the five companies issued a share
certificate to Equatorial Guinea stating that “[t]he Republic of E5uatorial Guinea is listed in the
share register of the company as the owner of these shares” .
7. On 17 October 2011, the transfer to Equatorial Guinea, as sole shareholder, of the
shareholder rights in the five companies was officially recorded and registered in France by the
main non-residents department of the French tax authority in Noisy-le-Grand, on a form entitled
“Uncertificated transfer of shareholder rights subject to mandatory declaration”.
8. This form, registered by Equatorial Guinea with the French tax authorities, states that
Mr. Teodoro Nguema Obiang Mangue is the transferor of the shareholder rights and that the
Republic of Equatorial Guinea is the transferee. It also cites, under the heading “form and name of
the company”, the five Swiss companies mentioned above, and, under the heading “seat of the
company”, the Canton of Fribourg in Switzerland. Finally, the heading “nature of the assets
represented by the transferred shareholder rights” indicates “real estate”.
2
Ann. 1, Share and claims transfer agreement, signed 15 September 2011.
3
Ann. 2, Minutes of the extraordinary general meetings dated 19 September 2011.
4Ann. 3, Certified copies of entries in the Commercial Register of the Canton of Fribourg, dated 23 September
and 5 October 2011. Current entries for each of the companies are available online at the following links: GEP Gestion,
Entreprise, Participation SA (https://appls.fr.ch/hrcmatic/hrcintapp/externalCompanyReport.action?com…-
CH-660-0474984-1&ofrcLanguage=2); Nordi Shipping & Trading Co Ltd (https://appls.fr.ch/hrcmatic/hrcintapp/
externalCompanyReport.action?companyOfrcID13-CH-660-1390995-0&ofrcLanguage=2); RE Entreprise SA
(https://appls.fr.ch/hrcmatic/hrcintapp/externalCompanyReport.action?com…
Language=2); Raya Holdings SA (https://appls.fr.ch/hrcmatic/hrcintapp/externalCompanyReport.action?com…
ID13-CH-660-0956993-5&ofrcLanguage=2); Ganesha Holding SA (https://appls.fr.ch/hrcmatic/hrcintapp/external
CompanyReport.action?companyOfrcID13-CH-217-0135878-7&ofrcLanguage=2).
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Ann. 4, Share certificates dated 19 September 2011. Article 686 of the Federal Act on the Amendment of the
Swiss Civil Code (Part Five: The Code of Obligations) of 30 March 1911 (status as of 1 January 2016), concerning the
share register, provides as follows:
“1. The company keeps a share register of registered shares in which the names and addresses of
the owners and usufructuaries are recorded. It must be kept in such a manner that it can be accessed at
any time in Switzerland.
2. Entry in the share register requires documentary proof that the share was acquired for
ownership or of the reasons for the usufruct thereof.
3. The company must certify such entry on the share certificate.
4. In relation to the company the shareholder or usufructuary is the person entered in the share
register.” [Translation from the website of the Federal Council of the Swiss Confederation.] - 3 -
9. It should be noted that the tax due in relation to this transfer of shareholder rights,
estimated by the French tax authorities at three hundred and seventeen thousand, six hundred and
seventy-two euros (€317,672), was paid in full by Equatorial Guinea . 6
10. The capital gains on the transfer of the shareholder rights, estimated at one million,
one hundred and forty-five thousand, seven hundred and forty euros (€1,145,740) on a form
entitled “Declaration of capital gains on the transfer of movable assets or shares in companies
investing primarily in real property”, was also paid in full by Equatorial Guinea to the French tax
authorities.
11. The capital gains declaration registered by the French tax authorities on 20 October 2011
names the Republic7of Equatorial Guinea as the “purchaser” of the securities of the five companies
mentioned above .
12. It was therefore on 15 September 2011, the date of the agreement on the transfer of
shares and claims, that Equatorial Guinea became the owner of the building located at
42 avenue Foch in Paris.
13. Having recorded and registered the transfer of shareholder rights to Equatorial Guinea
and having collected the related taxes, France has never contested Equatorial Guinea’s right of
ownership of the property at 42 avenue Foch as stated in the deed of transfer.
2. Regarding registration at the Land Registry in France
14. Currently, the companies Ganesha Holding SA, GEP Gestion Entreprise
Participation SA, RE Entreprise SA, Nordi Shipping & Trading Co Ltd, and Raya Holdings SA are
listed as the owners of the property at the Land Registration Department of the 8th arrondissement
of Paris, as is the case with all companies investing primarily in real estate, whose registration
8
documents do not mention the identity of company members .
15. Pursuant to paragraph N of the share transfer contract, Equatorial Guinea must liquidate
the five companies in order to register its property title at the Land Registration Department
directly.
16. However, because of the attachment order registered by the Paris Tribunal de grande
instance at the Land Registration Department of the 8th arrondissement of Paris on 31 July 2012, it
was legally impossible for Equatorial Guinea to register the property title directly under its name as
9
the owner of the building at 42 avenue Foch .
6Ann. 5, Transfer of shareholder rights form registered by the French tax authorities on 17 October 2011.
7
Ann. 6, Capital gains declaration registered by the French tax authorities on 20 October 2011.
8Ann. 7, Request for information from the Land Registration Department No. 2015H9665, dated 10 June 2015,
p. 163.
9
Ibid., p. 162, referring to the attachment under the Code of Criminal Procedure that took place on 31 July 2012. - 4 -
Judge Donoghue’s question
Judge Donoghue put the following question to Equatorial Guinea:
“The Application of Equatorial Guinea (paragraph 12) describes the property at
42 avenue Foch as ‘the premises of the diplomatic mission of Equatorial Guinea in
France’. As of what date does Equatorial Guinea consider that the property acquired
10
the status of premises of its diplomatic mission in France?”
Reply
Equatorial Guinea considers that the building at 42 avenue Foch in Paris acquired diplomatic
status as of 4 October 2011.
*
17. This question involves considerations of law and fact regarding the interpretation and
application of the Vienna Convention on Diplomatic Relations, in particular Article 1, paragraph (i)
thereof, which provides:
“For the purpose of the present Convention, the following expressions shall the
meanings hereunder assigned to them:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) The ‘premises of the mission’ are the buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership, used for the purposes of the mission
including the residence of the head of the mission.”
18. For the purposes of these proceedings on provisional measures, the key factor to take into
account is that the building located at 42 avenue Foch in Paris forms part of the premises of
Equatorial Guinea’s diplomatic mission, within the meaning of the Vienna Convention on
Diplomatic Relations of 18 April 1961 (hereinafter the “Vienna Convention”).
19. The relevant passage in paragraph 12 of the Application instituting proceedings reads
thus: “neither the courts nor the French Ministry of Foreign Affairs have recognized the
inviolability of the building located at 42 avenue Foch in Paris, as the premises of the diplomatic
mission of Equatorial Guinea in France”.
20. In paragraph 20 of the Application, we explained from which point in time the building
at 42 avenue Foch in Paris was assigned to the diplomatic mission of Equatorial Guinea in Paris.
The Application states in this regard that:
“The building located at 42 avenue Foch in Paris was, until 15 September 2011,
co-owned by five Swiss companies of which Mr. Teodoro Nguema Obiang Mangue
had been the sole shareholder since 18 December 2004. On 15 September 2011, he
transferred his shareholder’s rights in the companies to the State of Equatorial Guinea.
Since then, the building has been used by the diplomatic mission of Equatorial
Guinea.”
1CR 2016/17, p. 21. - 5 -
21. Equatorial Guinea considers that the building located at 42 avenue Foch in Paris, of
which it is the owner, acquired the status of premises of its diplomatic mission from the time when
a diplomatic Note was sent to the French Ministry of Foreign Affairs, on 4 October 2011,
informing it that the building11as being used for the performance of the functions of Equatorial
Guinea’s diplomatic mission . The relevant passages in that diplomatic Note read as follows:
“The Embassy of the Republic of Equatorial Guinea presents its compliments to
the Ministry of Foreign and European Affairs . . . and has the honour to inform it that
the Embassy has for a number of years owned a building located at 42 avenue Foch,
Paris (16th arr.), which it uses for the performance of the functions of its diplomatic
mission, a fact which it has hitherto not formally notified to your Department”.
22. In that Note, which was sent long before the building was attached under the Code of
Criminal Procedure on 31 July 2012, the Embassy of Equatorial Guinea recognizes that it had used
the building for a number of years for the performance of the functions of its diplomatic mission.
However, Equatorial Guinea does not claim that the building, while being used prior to
4 October 2011, enjoyed diplomatic mission status, in other words, that the building was protected
by the principle of inviolability of premises under the Vienna Convention. It had in fact happened
previously, prior to 4 October 2011, that the building had been used to accommodate Equatorial
Guinea’s diplomatic staff or other officials on special missions. The Embassy did not deem it
necessary to register the building with the French Ministry of Foreign Affairs which, moreover,
is not a formal requirement so that it would be recognized by the latter as having the status of
diplomatic premises and thus requiring protection, because part of the building was being used for
private purposes during that period.
23. Equatorial Guinea has continually repeated to the French authorities that, regarding the 12
status of premises of a diplomatic mission, the régime of the Vienna Convention is declaratory .
In a Note Verbale dated 28 March 2012, Equatorial Guinea reiterated in this respect:
“in the Note Verbale of 4 October 2011, in which it advised the Protocol Department
that it had premises located at 42 avenue Foch, Paris, for which it was requesting
diplomatic protection, the Republic of Equatorial Guinea expressly stated that the
assignment of those premises to the diplomatic mission of Equatorial Guinea had
already taken effect” (emphasis in the original) . 13
24. It is clear from these diplomatic exchanges that, in Equatorial Guinea’s view, the
building located at 42 avenue Foch in Paris should be considered as the premises of its diplomatic
mission in France as of 4 October 2011, whether the criterion of “declaratory effect”, as advanced
by Equatorial Guinea, or that of “effective assignment”, as advanced by France, is applied. In the
same Note Verbale, Equatorial Guinea took the view that the criterion of “effective assignment”,
relied on by France to refuse the diplomatic protection that had been requested, was fulfilled
through its declaration of 4 October 2011. It could not be otherwise, since assignment consists in
giving a purpose or a function to a person or property. That is precisely the subject of the Note
Verbale of 4 October 2011. In accordance with the criterion of effective assignment put forward
by France, it is beyond doubt that Equatorial Guinea effectively decided to make the building the
premises of its diplomatic mission in France. This is attested by the fact that as of
17 October 2011, following the end of Ambassador Edjo Ovono Frederico’s mission, the Chargée
d’affaires a.i., Ms Bindang Ob14ng, who is also the Permanent Delegate to UNESCO, was
rehoused at 42 avenue Foch . The reason for this change in accommodation was that the dwelling
1Application instituting proceedings, para. 32.
12
Nos. 16, 17 and 19 of the documents communicated by France.
1Nos. 17 and 19 of the documents communicated by France.
1No. 3 of the documents communicated by France. - 6 -
located at 46 rue des Belles Feuilles was unfit for habitation and that the dignity of
Ms Bindang Obiang’s new functions required a better residence.
25. The Embassy of Equatorial Guinea housed its Chargée d’affaires a.i. at 42 avenue Foch
precisely because it considered that, as of 4 October 2011, the building enjoyed inviolability as
premises of the diplomatic mission. When the French authorities intruded on the premises on
14 February 2012, the Chargée d’affaires protested on the spot and by Note Verbale addressed to
the Quai d’Orsay . Equatorial Guinea’s Minister for Foreign Affairs, International Co-operation
and Francophone Affairs also reacted the same day by Note Verbale. He wrote to his French
counterpart to express his “regret that . . . the residence of the Chargée d’affaires and Permanent
Representative of Equatorial Guinea to UNESCO in Paris is the subject of intervention by the
investigating judge and the French police, without any preliminary inquiry that would justify such
16
action” and to ask the French Government to respect the Vienna Convention .
26. We would draw attention to the fact France was informed at the highest level of State
that Equatorial Guinea had acquired the building at 42 avenue Foch and assigned it to its
diplomatic mission. In a letter dated 14 February 2012, President Obiang wrote as follows to his
French counterpart, President Sarkozy:
“Your Excellency is not unaware of the fact that my son, Teodoro NGUEMA
OBIANG MANGUE, lived in France, where he pursued his studies, from childhood
until he reached adulthood. France was his preferred country and, as a young man, he
purchased a residence in Paris, however, due to the pressures on him as a result of the
supposed unlawful purchase of property, he decided to resell the said building to the
Government of the Republic of Equatorial Guinea.
At this time, the building in question is a property that was lawfully acquired by
the Government of Equatorial Guinea and is currently used by the Representative to
UNESCO, who is in charge of the Embassy’s property. The said property is afforded
legal and diplomatic protection under the Vienna Convention and the bilateral
17
agreements signed by the two States.”
27. In order to determine whether Equatorial Guinea considered the building at
42 avenue Foch to be protected by the rule of inviolability at that time, it is irrelevant whether the
appointment of Ms Bindang Obiang was contrary to the Vienna Convention, as claimed by France
in a Note Verbale of 31 October 2011 . Ms Bindang Obiang, who was extremely upset by the
events on 14 February 2012, also hastened to write to UNESCO the same day , to ensure that the
organization took account of her change of address from 46 rue des Belles Feuilles to
42 avenue Foch in Paris. She had not deemed it necessary to do so earlier, since she considered
herself to be protected by the Vienna Convention of 18 April 1961, as a member of the diplomatic
staff of the Embassy of Equatorial Guinea.
28. When, on 15 February 2012, the Embassy of Equatorial Guinea notified the French
Ministry of Foreign Affairs that ministers from Malabo were seeking the protection of France with
20
a view to visiting the building at 42 avenue Foch , it was in fact in order to supervise preparations
for the effective occupation of the building, which had been acquired for use as premises of the
1No. 7 of the documents communicated by France.
16
No. 6 of the documents communicated by France.
17
No. 5 of the documents communicated by France.
1No. 4 of the documents communicated by France.
19
No. 8 of the documents communicated by France.
20
No. 9 of the documents communicated by France. - 7 -
diplomatic mission of Equatorial Guinea. Furthermore, the same day, the Embassy of Equatorial
Guinea protested strongly against the intrusion by the French authorities in the building at
21
42 avenue Foch .
29. Equatorial Guinea would also draw attention to the Note Verbale of 27 July 2012 from
its Embassy, in which it informed France that the building at 42 avenue Foch was now in fact being
used as premises of its diplomatic mission. The Note reads as follows:
“The Embassy of the Republic of Equatorial Guinea presents its compliments to
the Ministry of Foreign and European Affairs . . . and has the honour to inform it that,
as of Friday 27 July 2012, the offices of the Embassy are located at the following
address: 42 Avenue Foch, Paris (16th arr.), a building which it now uses for the
performance of the functions of its diplomatic mission in France.” 22
30. The wording of the Note Verbale of 2 August 2012 is equally clear:
“The Embassy of the Republic of Equatorial Guinea presents its compliments to
the Ministry of Foreign and European Affairs . . . and has the honour to inform it that,
further to its preceding Notes Verbales, it hereby confirms that its chancellery is
indeed located at the following address: 42 Avenue Foch, Paris (16th arr.), a building
that it uses as the official offices of its diplomatic mission in France.”3
31. The official use of 42 avenue Foch has been maintained without interruption since that
time. Moreover, it is to this address that French officials wishing to visit Equatorial Guinea submit
their requests for an entry visa. Similarly, the French Embassy in Malabo informs French citizens
who wish to visit Equatorial Guinea that the Embassy of Equatorial Guinea in Paris is located at
42 avenue Foch . 24 The building at 29 boulevard des Courcelles, which formerly housed the
Embassy of Equatorial Guinea in France, is now used by the commercial department of Equatorial
25
Guinea’s mission in France. This information has been communicated to France .
32. In sum, Equatorial Guinea has been consistent in all the steps it has taken to have the
status of the building located at 42 avenue Foch in Paris recognized as premises of its diplomatic
mission. It announced to the French Ministry of Foreign Affairs on 4 October 2011 that it had
designated this property as premises of its diplomatic mission; on 14 February 2012, its Head of
State informed the French Head of State that it had acquired the building and assigned it to its
diplomatic mission; it housed the Chargée d’affaires a.i. in the building as of 17 October 2011;
and finally, it transferred its Embassy offices there on 27 July 2012. Equatorial Guinea therefore
considers that the building at 42 avenue Foch in Paris acquired diplomatic status as of
4 October 2011.
(Signed) Mr. Carmelo N VONO N CA ,
Agent of the Republic of Equatorial Guinea.
2No. 10 of the documents communicated by France.
22
No. 22 of the documents communicated by France.
2No. 23 of the documents communicated by France.
2See online: http://www.ambafrance-gq.org/Visa-d-entree-en-Guinee-Equatoriale. Last updated on 2 May 2016.
25
No. 26 of the documents communicated by France. - 8 -
List of annexes
Annex 1: Agreement on the transfer of shares and claims, signed 15 September 2011.
Annex 2: Minutes of the extraordinary general meetings dated 19 September 2011.
Annex 3: Certified copies of entries in the Commercial Register of the Canton of Fribourg.
Annex 4: Share certificates dated 19 September 2011.
Annex 5: Transfer of shareholder rights form registered by the French tax authorities on
17 October 2011.
Annex 6: Capital gains declaration registered by the French tax authorities on 20 October 2011.
Annex 7: Request for information from the Land Registration Department No. 2015H9665
dated 10 June 2015.
___________
Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue at the public sitting held on 19 October 2016 at 5 p.m.