14697
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING IMMUNITIES AND CRIMINAL PROCEEDINGS
(EQUATORIAL GUINEA v. FRANCE)
PRELIMINARY OBJECTIONS
OF THE
FRENCH REPUBLIC
30 March 2017
[Translation by the Registry]
TABLE OF CONTENTS
Page
Introduction ........................................................................................................................................ 1
A. Procedural history .................................................................................................................... 1
B. General presentation and structure of the preliminary objections ............................................ 2
CHAPTER 1 GENERAL OBSERVATIONS............................................................................................... 3
I. Facts of the case ......................................................................................................................... 3
A. The origin of the criminal proceedings instituted before the French courts ....................... 3
B. The townhouse located at 42 avenue Foch in Paris ............................................................. 4
1. Uncertainty about the date on which Equatorial Guinea claims to have acquired
ownership of the building located at 42 avenue Foch in Paris ..................................... 5
2. Uncertainty about Equatorial Guinea’s use of the building located at
42 avenue Foch in Paris ................................................................................................ 6
C. Mr. Teodoro Nguema Obiang Mangue’s placement under judicial examination ............... 8
II. The subject-matter of the dispute ........................................................................................... 10
III. The abusive nature of the Application .................................................................................. 17
A. Equatorial Guinea’s claim is an abuse of the International Court of Justice .................... 17
B. Equatorial Guinea’s claim seeks to consolidate an abuse of rights ................................... 22
CHAPTER 2 THE COURT’S LACK OF JURISDICTION ON THE BASIS OF THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ................................................... 27
I. Article 4 of the Convention ..................................................................................................... 27
II. The obligations laid down by the Convention ........................................................................ 30
A. The overall scheme of the obligations in the Palermo Convention ................................... 31
B. An examination of the provisions of the Convention invoked by Equatorial Guinea ....... 32
1. Provisions invoked in respect of the proceedings against Mr. Teodoro Nguema
Obiang Mangue .......................................................................................................... 33
2. Provisions invoked in respect of the building located at 42 avenue Foch in Paris ..... 35
CHAPTER 3 THE COURT’S LACK OF JURISDICTION ON THE BASIS OF THE VIENNA
CONVENTION ON DIPLOMATIC RELATIONS ................................................................................ 36
I. The lack of a dispute between the Parties concerning the interpretation or application of
Article 22 of the Vienna Convention ..................................................................................... 39
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II. The impossibility of linking the dispute alleged by Equatorial Guinea to the provisions
of the Vienna Convention ...................................................................................................... 45
III. The limits of the Court’s jurisdiction on the basis of the Vienna Convention on
Diplomatic Relations ............................................................................................................. 51
SUBMISSIONS .................................................................................................................................... 54
LIST OF ANNEXES ............................................................................................................................. 55
INTRODUCTION
1. Article 79, paragraph 1, of the Rules of Court provides that:
“Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon which is
requested before any further proceedings on the merits, shall be made in writing
within the time-limit fixed for the delivery of the Counter-Memorial.”
2. The French Republic (hereinafter “France”) has decided to avail itself of this possibility
and raise objections to the jurisdiction of the Court to entertain the case brought by the Republic of
Equatorial Guinea (hereinafter “Equatorial Guinea”) by an Application dated 13 June 2016. That is
the subject of these written pleadings.
A. Procedural history
3. On 13 June 2016, Equatorial Guinea filed an Application against France before the
International Court of Justice with regard to a dispute concerning “the immunity from criminal
jurisdiction of the Second Vice-President of the Republic of Equatorial Guinea in charge of
Defence and State Security [Mr. Teodoro Nguema Obiang Mangue], and the legal status of the
building which houses the Embassy of Equatorial Guinea” in France. As basis for the jurisdiction
of the Court in the case, Equatorial Guinea invoked Article 35 of the Convention against
Transnational Organized Crime and the Optional Protocol to the Vienna Convention on Diplomatic
Relations, concerning the Compulsory Settlement of Disputes.
4. On 29 September 2016, Equatorial Guinea submitted a Request for the indication of
provisional measures, asking the Court “pending its judgment on the merits, to indicate the
following provisional measures:
(a) that France suspend all the criminal proceedings brought against the Vice-President of the
Republic of Equatorial Guinea, and refrain from launching new proceedings against him, which
might aggravate or extend the dispute submitted to the Court;
(b) that France ensure that the building located at 42 avenue Foch in Paris is treated as premises of
Equatorial Guinea’s diplomatic mission in France and, in particular, assure its inviolability, and
that those premises, together with their furnishings and other property thereon, or previously
thereon, are protected from any intrusion or damage, any search, requisition, attachment or any
other measure of constraint;
(c) that France refrain from taking any other measure that might cause prejudice to the rights
claimed by Equatorial Guinea and/or aggravate or extend the dispute submitted to the Court, or
compromise the implementation of any decision which the Court might render”.
5. After the public hearings which were held from 17 to 19 October 2016, the Court, by an
Order dated 7 December 2016, rejected Equatorial Guinea’s request for the legal proceedings
before the French courts to be suspended, finding that it did not have prima facie jurisdiction to
entertain Equatorial Guinea’s request relating to the immunity from criminal jurisdiction which,
according to the Applicant, Mr. Teodoro Nguema Obiang Mangue enjoys as Second Vice-President
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of the Republic of Equatorial Guinea in charge of Defence and State Security1. The Court found
that a dispute capable of falling within the scope of the Convention against Transnational
Organized Crime did not exist between the Parties.
6. Regarding the building located at 42 avenue Foch, the Court considered that the
conditions for indicating provisional measures were met and ordered France, pending a final
decision in the case, to take “all measures at its disposal to ensure that the premises presented as
housing the diplomatic mission of Equatorial Guinea at 42 avenue Foch in Paris enjoy treatment
equivalent to that required by Article 22 of the Vienna Convention on Diplomatic Relations, in
order to ensure their inviolability”2.
7. On 3 January 2017, Equatorial Guinea filed its Memorial in the Registry of the Court.
Pursuant to the provisions of Article 79, paragraph 1, of the Rules of Court, and the Court’s Order
of 1 July 2016 fixing time-limits for the proceedings, France wishes to raise objections to the
Court’s jurisdiction.
B. General presentation and structure of the preliminary objections
8. In the first chapter, France will make some general observations on the facts underlying
the dispute submitted to the Court, the scope of that dispute, and the abusive nature of the
Application.
9. In the second chapter, it will show, as the Court found prima facie in its Order of
7 December 2016, that a dispute capable of falling within the provisions of the Convention against
Transnational Organized Crime does not exist between Equatorial Guinea and France, and that,
therefore, the Court lacks jurisdiction over that aspect of the case.
10. In the third chapter, France will argue that the Court does not have jurisdiction to
entertain aspects of the dispute based on the Vienna Convention on Diplomatic Relations.
11. These preliminary objections will thus be structured as follows:
Chapter 1: General Observations
Chapter 2: The Court’s lack of jurisdiction on the basis of the United Nations Convention
against Transnational Organized Crime
Chapter 3: The Court’s lack of jurisdiction on the basis of the Vienna Convention on
Diplomatic Relations.
1 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Order of 7 Dec. 2016, para. 46.
2 Ibid., para. 99.
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CHAPTER 1
GENERAL OBSERVATIONS
12. As a preliminary matter, France would like to return to certain facts underlying the
proceedings (I), the scope of the dispute (II), and the abusive nature of Equatorial Guinea’s
Application, which should lead the Court to decide that it lacks jurisdiction to entertain it (III).
I. Facts of the case
13. During the Court’s consideration of the Request for the indication of provisional
measures filed by Equatorial Guinea, the presentation by the Agent of France and the oral
arguments of its counsel demonstrated that the facts of the case that gave rise to the dispute
submitted to the Court were singular in nature and had been the subject of contradictory statements
by Equatorial Guinea. France notes that those contradictions are once again reflected in the
Memorial that Equatorial Guinea submitted to the Court on 3 January 2017.
14. As the Court has pointed out, “[t]he existence of jurisdiction of the Court in a given case
is . . . not a question of fact, but a question of law to be resolved in the light of the relevant facts”3.
Consequently, without going into any great detail, France wishes to return to certain factual
elements underlying Equatorial Guinea’s Application, which it was able to discuss only briefly at
the hearings on the request for provisional measures.
15. The facts set out in Equatorial Guinea’s Memorial that are not discussed in the present
submission should, however, not be considered as accepted by France, which reserves the right to
return to them as necessary.
A. The origin of the criminal proceedings instituted before the French courts
16. The criminal proceedings instituted against Mr. Teodoro Nguema Obiang Mangue before
the French courts originated with a complaint filed on 2 December 2008 by the French association
Transparency International France against several African Heads of State and members of their
families, including Mr. Teodoro Nguema Obiang Mangue, before the senior investigating judges of
the Paris Tribunal de grande instance, for acts of handling misappropriated public funds, money
laundering, misuse of corporate assets, breach of trust and concealment4.
17. By a judgment dated 9 November 2010, the Chambre criminelle of the Cour de cassation
found Transparency International France’s civil-party application admissible5.
18. On 4 July 2011, the Paris Public Prosecutor submitted an application for characterization,
requesting that the investigation should concern only facts that could be characterized as money
3 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988, p. 76, para. 16.
4 Complaint with civil-party application filed by Transparency International France and Mr. Grégory Ngbwa
Minsta with the Paris Tribunal de grande instance, 2 Dec. 2008, p. 22 (Ann. 1).
5 Cour de cassation, Chambre criminelle, 9 Nov. 2010 (No. 09-88272) (Ann. 4 of the Application of Equatorial
Guinea, 13 June 2016 (hereinafter “AEG”)).
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laundering or handling offences, that is, acts committed on French territory in 1997 and up to
October 2011. The criminal proceedings that were instituted do not therefore involve an
extraterritorial extension of the jurisdiction of the French courts, contrary to what
Equatorial Guinea claims6.
19. In the course of the judicial investigation, the investigating judges had occasion to look
into the Obiang family’s assets in France, including, in particular, those accumulated by
Mr. Teodoro Nguema Obiang Mangue.
B. The townhouse located at 42 avenue Foch in Paris
20. In its complaint filed on 2 December 2008, Transparency International France drew the
attention of the French authorities to a building located at 42 avenue Foch in Paris, in the following
terms:
“(b) As regards Mr. Teodoro OBIANG and his family:
Mr. Teodoro OBIANG is the President of Equatorial Guinea.
According to the 12 April 2006 edition of Le Figaro (see article by Stéphane
Bern, “Drapeau rouge et billet vert”, 12 May 2006 document 16), he acquired a
townhouse located on avenue Foch. It is evident that Mr. Teodoro OBIANG took
pains not to be named as the apparent owner of the property, but the verifications to be
made in the forthcoming investigations will undoubtedly establish that he is.”7
21. The investigation subsequently established that the building in fact belonged to
Mr. Teodoro Nguema Obiang Mangue and was used in a personal capacity. The testimony gathered
in the course of the proceedings and the records of the searches conducted by the French authorities
speak for themselves8. On 19 July 2012, the judges attached the building (saisie pénale
immobilière), as a provisional measure, to prevent it from being sold before the end of the judicial
investigation9.
22. Equatorial Guinea then engaged in a considerable amount of diplomatic correspondence
in an attempt to block the criminal proceedings. Its contentions regarding the use of the building
located at 42 avenue Foch thus varied as the judicial proceedings progressed: sometimes it was
6 Memorial of Equatorial Guinea filed on 3 Jan. 2017 (hereinafter “MEG”), p. 91, para. 6.26.
7 Complaint with civil-party application filed by Transparency International France and Mr. Grégory Ngbwa
Mintsa with the Paris Tribunal de grande instance, 2 Dec. 2008, p. 9 (Ann. 1).
8 See Order for partial dismissal and partial referral to the Tribunal correctionnel, 5 Sep. 2016 (regularized by the
order of 2 Dec. 2016), pp. 17-20 (Ann. 7 MEG).
9 See Order of attachment of real property (saisie pénale immobilière), 19 July 2012 (No. 47 of the additional
documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional
measures).
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Teodoro’s accommodation as a young student10, and at other times it was the residence of
Equatorial Guinea’s Permanent Delegate to UNESCO11 or the premises of its diplomatic mission12.
23. Faced with these fluctuating and contradictory statements, France through the
Protocol Department of the Ministry of Foreign Affairs consistently stated that it was unable to
recognize Equatorial Guinea’s claims in respect of the building located at 42 avenue Foch,
recalling that there had been an order to attach the property and that judicial proceedings were
pending13. This position was reiterated to the Equatorial Guinean authorities on multiple occasions,
including quite recently14.
1. Uncertainty about the date on which Equatorial Guinea claims to have acquired
ownership of the building located at 42 avenue Foch in Paris
24. By a Note Verbale dated 4 October 2011, the Embassy of Equatorial Guinea in France
drew the attention of the French Ministry of Foreign Affairs to the building located at
42 avenue Foch in the following terms:
“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.
Since the building forms part of the premises of the diplomatic mission,
pursuant to Article 1 of the Vienna Convention on Diplomatic Relations of 18 April
1961, the Republic of Equatorial Guinea wishes to give you official notification so
that the French State can ensure the protection of those premises, in accordance with
Article 22 of the said Convention.”15
10 Letter from the President of Equatorial Guinea to the French President, 14 Feb. 2012 (No. 5 of the additional
documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional
measures).
11 Note Verbale No. 387/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 17 Oct. 2011 (No. 3 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures). See also Note Verbale No. 251/12 from
the Ministry of Foreign Affairs of Equatorial Guinea to the Ministry of Foreign Affairs of the French Republic, 14 Feb.
2012 (No. 6 of the additional documents communicated by France on 14 Oct. 2016 in connection with
Equatorial Guinea’s request for provisional measures); Note Verbale No. 173/12 from the Embassy of the Republic of
Equatorial Guinea to the Ministry of Foreign Affairs of the French Republic, 14 Feb. 2012 (No. 7 of the additional
documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional
measures).
12 Note Verbale No. 249/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 12 Mar. 2012 (No. 16 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
13 Note Verbale No. 803 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 20 Feb. 2012 (No. 12 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
14 Note Verbale No. 158/865 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 2 Mar. 2017 (Ann. 2).
15 NoteVerbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (No. 1 of the additional documents communicated by France on 14 Oct. 2016
in connection with Equatorial Guinea’s request for provisional measures).
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25. Whereas on 4 October 2011 Equatorial Guinea had affirmed that it had “for a number of
years owned” the building, in its response to the question put by Judge Bennouna at the end of the
oral proceedings on the request for provisional measures, it stated that it considered that it had
“definitively acquired the title to the property located at 42 avenue Foch on 15 September 2011”;
that is, less than a month before the aforementioned Note Verbale had been sent, not “a number of
years”. Compounding the uncertainty, the Embassy of Equatorial Guinea stated, in a Note Verbale
dated 15 February 2012, that “[t]he title to the property is in the process of being transferred”16.
26. On 5 October 2011, as part of the judicial investigation, investigators went to the address
of the townhouse. As noted in the order for partial referral, “[a]t the entrance porch, [the
investigators] noted the presence of two makeshift signs marked ‘République de Guinée
Équatoriale locaux de l’ambassade’ (Republic of Equatorial Guinea Embassy premises). The
building’s caretaker explained to them that, the previous day [the day the Embassy sent the
Ministry of Foreign Affairs its Note Verbale stating that it had owned the building for a number of
years], a driver and two employees of the Embassy of the Republic of Equatorial Guinea had come
to the premises in a Mercedes with diplomatic plates and had affixed the signs . . .”17
2. Uncertainty about Equatorial Guinea’s use of the building located at 42 avenue Foch
in Paris
27. The Notes Verbales from the Embassy of Equatorial Guinea to the Protocol Department
of the French Ministry of Foreign Affairs show contradictions in Equatorial Guinea’s position
regarding the status of the building located at 42 avenue Foch:
On 4 October 2011, the Embassy claimed that the building had been “use[d] [for a number of
years] for the performance of the functions of its diplomatic mission”18.
On 17 October 2011, the building was then described by the Embassy as housing the new
official residence of the Permanent Delegate to UNESCO19. In its reply to the question put by
Judge Donoghue at the end of the oral proceedings on the request for provisional measures,
Equatorial Guinea admitted that it had not notified UNESCO of its Permanent Delegate’s
change of residence until 14 February 201220, that is, the first day of the searches and
attachment of movable assets carried out at 42 avenue Foch. Yet, by a Note Verbale dated
31 October 2011, the French Ministry of Foreign Affairs had taken care to remind
16 Note Verbale No. 187/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 15 Feb. 2012 (No. 10 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
17Order for partial dismissal and partial referral to the Tribunal correctionnel, 5 Sep. 2016 (regularized by the
order of 2 Dec. 2016), p. 16 (Ann. 7 MEG).
18Note Verbale No. 365/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 4 Oct. 2011 (No. 1 of the additional documents communicated by France on 14 Oct. 2016
in connection with Equatorial Guinea’s request for provisional measures).
19Note Verbale No. 387/11 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 17 Oct. 2011 (No. 3 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
20Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
pp. 8-9, para. 27.
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Equatorial Guinea that any such change of residence had to be notified not to France, but rather
to UNESCO’s protocol department21.
In this regard, Equatorial Guinea claims in its Memorial that “[o]n 17 October 2011, following
the end of Ambassador Edjo Ovono Frederico’s mission, the designated Chargée d’affaires a.i.,
Ms Bindang Obiang, who is also the Permanent Delegate of Equatorial Guinea to UNESCO,
was rehoused at 42 avenue Foch. The reason for this change in accommodation was that the
dwelling at 46 rue des Belles Feuilles notified to UNESCO was unfit for habitation, and the
dignity of Ms Bindang Obiang’s new functions required a better residence”22. However, on
19 September 2012, in the Note Verbale from the Embassy of Equatorial Guinea requesting
that the Protocol Department issue a special residence permit to Ms Bindang Obiang in her
capacity as Extraordinary and Plenipotentiary Ambassador, the address listed in the notification
form regarding her appointment and the assumption of her duties is given as 8 bis avenue de
Verzy in Paris (17th arr.), not 42 avenue Foch23.
On 16 February 2012, when Equatorial Guinea’s Ministry of Foreign Affairs was seeking the
approval of the French authorities for Ms Bindang Obiang’s appointment as
Equatorial Guinea’s Ambassador to France, it was then stated in the curriculum vitae attached
to the Note Verbale that she was residing at 46 rue des Belles Feuilles in Paris (16th arr.).
Furthermore, in its reply to the question put by Judge Donoghue, Equatorial Guinea admitted,
concerning its Embassy’s request by Note Verbale dated 15 February 201224 for protection for
two Equatorial Guinean ministers who had to go to the building at 42 avenue Foch, that “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 diplomatic mission of Equatorial Guinea”25.
On 27 July 2012, that is, eight days after the investigating judges had decided to order the
attachment of the property, a new Note Verbale from the Embassy of Equatorial Guinea (its
footer still showing the Embassy’s address as 29 boulevard de Courcelles, Paris (8th arr.))
stated that:
“as from Friday 27 July 2012, the Embassy’s offices are located at 42 avenue Foch,
Paris (16th arr.), a building which it is henceforth using for the performance of the
functions of its diplomatic mission in France”.
28. These contradictions are reflected in Equatorial Guinea’s written pleadings in the present
proceedings:
21 Note Verbale No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 31 Oct. 2011 (No. 4 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
22 MEG, pp. 47-48, para. 4.9.
23 Note Verbale No. 628/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 19 Sep. 2012 (Ann. 3).
24 Note Verbale No. 185/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 15 Feb. 2012 (No. 9 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
25 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016, p. 9,
para. 28.
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In its Application instituting proceedings dated 13 June 2016, Equatorial Guinea claimed that
the building located at 42 avenue Foch had been used by its diplomatic mission in France since
15 September 201126.
In its reply to the questions put by Judge Bennouna and Judge Donoghue, dated 26 October
2016, Equatorial Guinea gave 4 October 2011 as the date marking the start of its use of the
premises for the performance of its diplomatic mission in France27.
Furthermore, in its Memorial filed on 3 January 2017, Equatorial Guinea states that it protested
against the first searches conducted in the building on 28 September and 3 October 2011, but
acknowledges in the next line that it was not until 4 October 2011 that it informed the French
Ministry of Foreign Affairs that the property was assigned to its diplomatic mission in
France28. Equatorial Guinea thus protested against the search measures before it had even sent
the first Note Verbale, dated 4 October 2011, informing the French authorities of the building’s
status.
29. In response to each of these Notes Verbales which might be seen as so many reactions
on the part of Equatorial Guinea to developments in the criminal proceedings against
Mr. Teodoro Nguema Obiang Mangue France recalled, through the Protocol Department of the
Ministry of Foreign Affairs, that the building located at 42 avenue Foch in Paris had never been
recognized as forming part of the premises of Equatorial Guinea’s diplomatic mission29.
C. Mr. Teodoro Nguema Obiang Mangue’s placement under judicial examination
30. When Transparency International France filed its complaint before the French courts,
Mr. Teodoro Nguema Obiang Mangue was serving as Minister for Agriculture and Forestry of the
Republic of Equatorial Guinea. As the criminal proceedings progressed, his functions changed.
31. On 23 January 2012, the judges in charge of the investigation summoned
Mr. Teodoro Nguema Obiang Mangue to a first appearance to be held on 1 March 2012, informing
him that they were considering placing him under judicial examination. Mr. Teodoro Nguema
26 AEG, p. 6, para. 20: “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.”
27 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
p. 10, para. 32.
28 MEG, p. 150, para. 8.49.
29 See, in particular, Note Verbale No. 5007 from the Ministry of Foreign Affairs of the French Republic to the
Embassy of the Republic of Equatorial Guinea, 11 Oct. 2011 (No. 2 of the additional documents communicated by
France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional measures); Note Verbale
No. 5393 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of
Equatorial Guinea, 31 Oct. 2011 (No. 4 of the additional documents communicated by France on 14 Oct. 2016 in
connection with Equatorial Guinea’s request for provisional measures); Note Verbale No. 802 from the Ministry of
Foreign Affairs of the French Republic to the Embassy of the Republic of Equatorial Guinea, 20 Feb. 2010 (No. 12 of the
additional documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for
provisional measures); Note Verbale No. 1341 from the Ministry of Foreign Affairs of the French Republic to the
Embassy of the Republic of Equatorial Guinea, 28 Mar. 2012 (No. 18 of the additional documents communicated by
France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional measures); Note Verbale
No. 158/865 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the Republic of
Equatorial Guinea, 2 Mar. 2017 (Ann. 2).
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Obiang Mangue refused to appear30. Summoned a second time on 11 July 2012,
Mr. Teodoro Nguema Obiang Mangue, again, failed to appear31.
32. In the meantime, on 21 May 2012, Mr. Teodoro Nguema Obiang Mangue was appointed
Second Vice-President in charge of Defence and State Security, by decree of the President of the
Republic of Equatorial Guinea32.
33. On 14 November 2013, the French judicial authorities sent a request for international
mutual assistance in criminal matters to the judicial authorities of Equatorial Guinea, with a view to
placing Mr. Teodoro Nguema Obiang Mangue under judicial examination.
34. This request was accepted and voluntarily executed, on 4 March 2014, by the
Equatorial Guinean authorities, which did not therefore consider that the request conflicted with the
principle of sovereign equality of States. On 18 March 2014, judges from the Supreme Court of
Malabo, acting as investigating judges for the purpose of executing the mutual legal assistance,
notified Mr. Teodoro Nguema Obiang Mangue that he was being placed under judicial
examination:
“for having in Paris and on national territory during 1997 and until October 2011, in
any event for a period not covered by prescription, assisted in making hidden
investments or in converting the direct or indirect proceeds of a felony or
misdemeanour, in this instance offences of misuse of corporate assets,
misappropriation of public funds, breach of trust and corruption, by acquiring a
number of movable and immovable assets and paying for a number of services out of
the funds of the firms EDUM, SODAGE and SOMAGUI FORESTAL, acts
characterized as laundering of the proceeds of the above-mentioned misdemeanours
which are defined and punishable under Articles 324-1; 432-15; 314-1 of the French
Penal Code and Article L1241-3 of the French Commercial Code”33.
35. On 23 May 2016, the National Financial Prosecutor sought the referral of
Mr. Teodoro Nguema Obiang Mangue to the Paris Tribunal correctionnel34. Less than a month
later, Equatorial Guinea filed its Application instituting proceedings before the Court.
36. The body of evidence accumulated over the course of the proceedings led the
investigating judges, on 5 September 2016, to issue an order referring Mr. Teodoro Nguema
Obiang Mangue to the Paris Tribunal correctionnel for the same offences that had prompted his
30 See Order for partial dismissal and partial referral to the Tribunal correctionnel, 5 Sep. 2016 (regularized by
the order of 2 Dec. 2016), pp. 28 (Ann. 7 MEG) and Record of failure to appear before the Paris Tribunal de grande
instance, 1 Mar. 2012 (Ann. 4).
31 See Order for partial dismissal and partial referral to the Tribunal correctionnel, 5 Sep. 2016 (regularized by
the order of 2 Dec. 2016), pp. 28 (Ann. 7 MEG), Summons to attend a first appearance, Paris Tribunal de grande
instance, 22 May 2012 (Ann. 5) and Record of failure to appear before the Paris Tribunal de grande instance,
11 July2012 (Ann. 6).
32 Decree of the President of the Republic of Equatorial Guinea No. 64/2012, 21 May 2012 (Ann. 3 MEG).
33 Record of questioning at first appearance and placement under judicial examination, 18 Mar. 2014 (Ann. 20
MEG).
34 Final submissions seeking separation of the complaints, and either their dismissal or their referral to the
Tribunal correctionnel, 23 May 2016 (Ann. 1 AEG).
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placement under judicial examination35. Less than a month later, Equatorial Guinea filed a Request
for the indication of provisional measures with the Court.
37. On 21 June 2016, Mr. Teodoro Nguema Obiang Mangue was appointed Vice-President
in charge of National Defence and State Security by decree of the President of the Republic of
Equatorial Guinea36.
38. As the Agent of France explained during the oral proceedings on Equatorial Guinea’s
request for provisional measures, at a procedural hearing on 24 October 2016 the judges scheduled
the hearings in the case from 2 to 12 January 201737.
39. On 2 January 2017, an initial hearing on the merits took place before the 32nd Chambre
of the Paris Tribunal correctionnel, in the absence of Mr. Teodoro Nguema Obiang Mangue, who
was represented by his counsel. The proceedings instituted by Equatorial Guinea before the
International Court of Justice were mentioned. The President of the Tribunal noted, inter alia, that,
pursuant to the Order of the Court dated 7 December 2016, any confiscation measure that might be
directed against the building located at 42 avenue Foch could not be executed until the conclusion
of the international proceedings.
40. By decision of 4 January 2017, in response to a request from Mr. Teodoro Nguema
Obiang Mangue’s counsel, who deemed they did not have enough time to prepare his defence, the
President of the Tribunal correctionnel ordered the hearings in the case to be postponed and held
from 19 June to 6 July 2017, to ensure the sound administration of justice.
41. As the Agent of France pointed out during the oral proceedings on the request for
provisional measures38, if Mr. Nguema Obiang Mangue were to be convicted at first instance, he
would still be able to appeal by filing a simple statement with the Registry of the Tribunal. The
appeal would have suspensive effect. The decision made on appeal could also be contested by
means of a further appeal which would itself also have suspensive effect before the Chambre
criminelle of the Cour de cassation, which could, if appropriate, decide to quash the decision and
refer the case back to the lower appeal court.
II. The subject-matter of the dispute
42. In both its Application and its Memorial, Equatorial Guinea describes its dispute with
France as follows:
“The dispute between Equatorial Guinea and France, arising from certain
ongoing criminal proceedings in France, concerns the immunity from criminal
jurisdiction of the Second Vice-President of the Republic of Equatorial Guinea in
charge of Defence and State Security, and the legal status of the building which
35 Order for partial dismissal and partial referral to the Tribunal correctionnel, 5 Sep. 2016 (regularized by the
order of 2 Dec. 2016), pp. 17-20 (Ann. 7 MEG).
36 Decree of the President of the Republic of Equatorial Guinea No. 55/2016, 21 June 2016 (Ann. 6 MEG).
37 CR 2016/15, 18 Oct. 2016, p. 14, paras. 35-37 (Alabrune).
38 Ibid., pp. 14-17, paras. 36-52 (Alabrune).
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houses the Embassy of Equatorial Guinea, both as premises of the diplomatic mission
and as State property.”39
43. France will establish, in the following preliminary objections, that the Court lacks
jurisdiction to rule on either the alleged immunity from criminal jurisdiction claimed by the Second
Vice-President now the sole Vice-President of the Republic of Equatorial Guinea, or the
legal status of the building at 42 avenue Foch. First, however, the subject-matter and scope of the
Application need to be clearly defined.
44. Given that:
the submissions in Equatorial Guinea’s Memorial go far beyond its definition of the subjectmatter
of the dispute;
and, more generally, Equatorial Guinea takes great liberties with the treaties on which it
purports to base its claims.
45. First of all, it is patently clear that Equatorial Guinea’s submissions in both its
Application and its Memorial go far beyond the subject-matter of the dispute as Equatorial Guinea
itself defines it40. They are identical:
“(a) With regard to the French Republic’s failure to respect the sovereignty of the
Republic of Equatorial Guinea,
(i) to adjudge and declare that the French Republic has breached its obligation to
respect the principles of the sovereign equality of States and non-interference
in the internal affairs of another State, owed to the Republic of
Equatorial Guinea in accordance with international law, by permitting its
courts to initiate criminal legal proceedings against the Second
Vice-President of Equatorial Guinea for alleged offences which, even if they
were established, quod non, would fall solely within the jurisdiction of the
courts of Equatorial Guinea, and by allowing its courts to order the
attachment of a building belonging to the Republic of Equatorial Guinea and
used for the purposes of that country’s diplomatic mission in France.
(b) With regard to the Second Vice-President of the Republic of Equatorial Guinea in
charge of Defence and State Security,
(i) to adjudge and declare that, by initiating criminal proceedings against the
Second Vice-President of the Republic of Equatorial Guinea in charge of
Defence and State Security, His Excellency Mr. Teodoro Nguema
Obiang Mangue, the French Republic has acted and is continuing to act in
violation of its obligations under international law, notably the United
Nations Convention against Transnational Organized Crime and general
international law;
(ii) to order the French Republic to take all necessary measures to put an end to
any ongoing proceedings against the Second Vice-President of the Republic
of Equatorial Guinea in charge of Defence and State Security;
39 AEG, para. 2; MEG, para. 0.2.
40 See above, para. 42.
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(iii) to order the French Republic to take all necessary measures to prevent further
violations of the immunity of the Second Vice-President of Equatorial
Guinea in charge of Defence and State Security and to ensure, in particular,
that its courts do not initiate any criminal proceedings against the Second
Vice-President of the Republic of Equatorial Guinea in the future;
(c) With regard to the building located at 42 avenue Foch in Paris,
(i) to adjudge and declare that, by attaching the building located at 42 avenue
Foch in Paris, the property of the Republic of Equatorial Guinea and used for
the purposes of that country’s diplomatic mission in France, the
French Republic is in breach of its obligations under international law,
notably the Vienna Convention on Diplomatic Relations and the United
Nations Convention [against Transnational Organized Crime], as well as
general international law;
(ii) to order the French Republic to recognize the status of the building located at
42 avenue Foch in Paris as the property of the Republic of Equatorial Guinea,
and as the premises of its diplomatic mission in Paris, and, accordingly, to
ensure its protection as required by international law;
(d) In view of all the violations by the French Republic of international obligations
owed to the Republic of Equatorial Guinea,
(i) to adjudge and declare that the responsibility of the French Republic is
engaged on account of the harm that the violations of its international
obligations have caused and are continuing to cause to the Republic of
Equatorial Guinea;
(ii) to order the French Republic to make full reparation to the Republic of
Equatorial Guinea for the harm suffered, the amount of which shall be
determined at a later stage.”41
46. Equatorial Guinea’s first submission considerably broadens the scope of the dispute as
defined in the Memorial: it concerns the alleged violation of very broad principles of international
law, which Equatorial Guinea attempts to link artificially to the United Nations Convention against
Transnational Organized Crime.
47. Most significantly, in examining Equatorial Guinea’s request for provisional measures,
the Court simply found “that, prima facie, a dispute capable of falling within the provisions of the
Convention against Transnational Organized Crime and therefore concerning the interpretation or
the application of Article 4 of that Convention does not exist between the Parties”42. Of course, that
was merely a prima facie finding and, for good measure, France will return to this point below, in
Chapter 2 of these Preliminary Objections. It should be noted, however, that this basis of
jurisdiction is so obviously artificial that Equatorial Guinea does not actually rely on the
Palermo Convention of 15 December 2000 but rather on general international law, in the absence
of any basis establishing the Court’s jurisdiction in this regard.
41 AEG, para. 41; MEG, pp. 177-181, para. 9.42. See also Sir Michael Wood’s oral argument during the hearings
on Equatorial Guinea’s request for the indication of provisional measures (CR 2016/14, 17 Oct. 2016, pp. 21-22, para. 5).
See also CR 2016/15, 18 Oct. 2016, p. 19, para. 5.
42 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 Dec. 2016, p. 13, para. 50.
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48. This is, moreover, characteristic of Equatorial Guinea’s claims as a whole:
Equatorial Guinea seeks to establish its case on principles of general international law rather than
on treaty bases, of which there are none. It is striking here that Equatorial Guinea’s Application
contains a number of references to general or customary principles of international law,
regardless of whether they relate to Article 4 of the Palermo Convention. This extensive and
systematic reliance on general international law concerns both the allegation of violations, with
regard to Equatorial Guinea, of the principles of sovereign equality and non-interference in internal
affairs, and the questions of the immunity ratione personae allegedly enjoyed by
Mr. Teodoro Nguema Obiang Mangue and the legal status of the building at 42 avenue Foch as
State property.
49. Thus, regarding Mr. Teodoro Nguema Obiang Mangue’s alleged immunity and these
are just some of several examples it is stated:
in paragraph 19 of the Application:
“As the Republic of Equatorial Guinea has always maintained to France, the
nature of the functions of the Second Vice-President, Mr. Teodoro Nguema
Obiang Mangue, requires France to respect his personal immunity, in accordance with
customary international law, in particular since he is called upon to travel abroad on
behalf of Equatorial Guinea in order to perform those functions effectively.”
(Emphasis added)
in paragraphs 7.23 and 7.24 of the Memorial:
“In these proceedings, the legislation of States that have adopted laws on the
immunity of holders of high-ranking office in a State constitutes a particularly
important State practice. Generally speaking, such national legislation does not restrict
the immunity ratione personae of holders of high-ranking office in a State to Heads of
State, Heads of Government and Ministers for Foreign Affairs. Rather, it provides that
such immunity should be granted in accordance with general international law . . .
The decisions of national courts on the immunity of holders of high-ranking
office in a State, other than the Head of State, Head of Government and Minister for
Foreign Affairs, also constitute a particularly important State practice. They may
equally be relevant by virtue of Article 38, paragraph 1 (d), of the Statute of the Court.
These decisions show that national courts also take the view that customary
international law confers immunity ratione personae on certain holders of highranking
office in a State, other than the Head of State, Head of Government and
Minister for Foreign Affairs, and that they have interpreted the Court’s Judgment in
the Arrest Warrant case in that way. They also shed light on the criteria for
determining which holders of high-ranking office fall within the small circle of
beneficiaries of immunity ratione personae.” (Emphasis added)
in paragraph 7.42 of its Memorial:
“As regards the work of the International Law Commission on the topic
‘Immunity of State officials from foreign criminal jurisdiction’, in 2013 it
provisionally adopted a draft article entitled ‘Persons enjoying immunity ratione
personae’. The draft article provides that Heads of State, Heads of Government and
Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of
foreign criminal jurisdiction, but makes no reference to other holders of high-ranking
office in a State. It is important to remember that the Commission’s work is still at a
relatively early stage, since it has not yet completed its first reading of the draft
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articles on the subject. In any event, it cannot be argued that the provisionally adopted
text reflects the lex lata on immunity ratione personae, which is enjoyed by a small
circle of holders of high-ranking office in a State under customary international law.”
(Emphasis added)
in paragraph 7.62 of its Memorial:
“Equatorial Guinea has consistently explained to France the nature of its Second
Vice-President’s functions, in particular that he has to travel abroad on behalf of
Equatorial Guinea in order to perform those functions effectively, and has consistently
required France to respect his personal immunity, in accordance with customary
international law.” (Emphasis added)
50. As regards the immunities it claims in respect of the building at 42 avenue Foch,
Equatorial Guinea maintains:
in paragraph 39 of its Application:
“France is also in breach of its obligations, under general international law, to
ensure that no pre-judgment measures of constraint, such as attachment or arrest, are
taken against the property of a State in connection with a proceeding before a court of
another State, unless the State has consented to the taking of such measures. The rules
of customary international law governing States’ immunities in relation to the
attachment of their property are reflected in the 2004 United Nations Convention on
Jurisdictional Immunities of States and Their Property. These establish strict
limitations on the attachment of State property, as the Court confirmed in its Judgment
in the case concerning Jurisdictional Immunities of the State.” (Emphasis added)
in paragraph 8.63 of its Memorial:
“As we have amply demonstrated in Chapter 2, Section II, the building at
42 avenue Foch in Paris is used as the premises of Equatorial Guinea’s diplomatic
mission. It is therefore presumed to be State property used for government
non-commercial purposes and must accordingly enjoy State immunity under
customary international law.” (Emphasis added)
and in paragraph 8.66:
“France did not have the right to carry out measures of constraint against the
building at 42 avenue Foch, since Equatorial Guinea has become its owner, uses it for
government non-commercial purposes and has not waived the immunity granted to it
in respect of such property under customary international law.” (Emphasis added)
51. And, even more blatantly with regard to the violation of certain general principles of
international law, we can refer once again to one among several examples to paragraph 9.40
of the Memorial:
“It also goes without saying that most of the obligations owed to
Equatorial Guinea (inviolability of its diplomatic mission, immunity from execution of
its property, non-interference in its internal affairs and sovereign equality) are part of
general international law — specifically, customary international law. The continuing
nature of the requirement to perform those obligations is reinforced by the fact that
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they form part of the fundamental rules governing relations between States.”
(Emphasis added)
52. The same is true of the submissions themselves in the Application and the Memorial,
which read:
“(a) With regard to the French Republic’s failure to respect the sovereignty of the
Republic of Equatorial Guinea,
(i) to adjudge and declare that the French Republic has breached its obligation to
respect the principles of the sovereign equality of States and non-interference
in the internal affairs of another State, owed to the Republic of Equatorial
Guinea in accordance with international law, by permitting its courts to
initiate criminal legal proceedings against the Second Vice-President of
Equatorial Guinea for alleged offences which, even if they were established,
quod non, would fall solely within the jurisdiction of the courts of
Equatorial Guinea, and by allowing its courts to order the attachment of a
building belonging to the Republic of Equatorial Guinea and used for the
purposes of that country’s diplomatic mission in France”
And:
“(c) With regard to the building located at 42 avenue Foch in Paris:
(i) to adjudge and declare that, by attaching the building located at 42 avenue
Foch in Paris, the property of the Republic of Equatorial Guinea and used for
the purposes of that country’s diplomatic mission in France, the
French Republic is in breach of its obligations under international law,
notably the Vienna Convention on Diplomatic Relations and the United
Nations Convention against Transnational Organized Crime, as well as
general international law.”43 (Emphasis added)
53. It should further be noted that in its submissions in support of its request for provisional
measures, Equatorial Guinea included in its claims relating to the building an additional request to
protect the furnishings or other property that were in the building at the time the first searches were
conducted in the context of the criminal proceedings instituted before the French courts. Counsel
for France drew the Court’s attention to what appeared to be a new development in the requests
made by Equatorial Guinea44. The Court merely noted this incongruity in its Order of 7 December
2016, which probably did not require any further commentary to justify rejecting the request45.
Equatorial Guinea did not return to this point in the second round of oral argument or in its
Memorial, leaving the matter open. This uncertainty is symptomatic of Equatorial Guinea’s
approach in these proceedings: a fluctuating definition of the scope of the subject-matter of the
dispute, unencumbered by reliance on a basis for compulsory jurisdiction, with a preference instead
for general references to customary international law.
54. There is no need for a lengthy discussion recalling the self-evident principle that the
Court’s jurisdiction is strictly limited to disputes over which the Parties have conferred jurisdiction
43 AEG, submissions, p. 12, para. 41; MEG, submissions, pp. 181-182.
44 CR 2016/15, 18 Oct. 2016, pp. 40-41, paras. 34-35 (Pellet).
45 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 19.
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on the Court. They can do this by subscribing to the optional clause for compulsory jurisdiction; in
this instance, neither France nor Equatorial Guinea has made the declaration provided for in
Article 36, paragraph 2, of the Statute of the Court. They can also do so by entering into a special
agreement referring a specific dispute before the Court; this has not been done either. Lastly, they
can confer jurisdiction on the Court in “all matters specially provided for . . . in treaties and
conventions in force”, as stated in the first paragraph of Article 36. This is what Equatorial Guinea
claims to have done, by invoking two conventional bases of jurisdiction:
first, “Article 35 of the United Nations Convention against Transnational Organized Crime,
adopted by the United Nations General Assembly on 15 November 2000”;
second, the “Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning
the Compulsory Settlement of Disputes, done at Vienna on 18 April 1961”46.
55. In such circumstances, the jurisdiction of the Court is strictly confined to disputes falling
within the scope of the conventions on which the applicant State seeks to rely. In accordance with
its well-established jurisprudence, the Court cannot exercise jurisdiction (be it prima facie or
substantive) until it has satisfied itself that this is indeed the case47.
56. Moreover, the Court has already dealt with this question in the present case. First, it
recalled that:
“. . . in order to determine, even prima facie, whether a dispute within the meaning of
Article 35, paragraph 2, of the Convention exists, the Court cannot limit itself to
noting that one of the Parties maintains that the Convention applies, while the other
denies it. It must ascertain whether the acts complained of by Equatorial Guinea are
prima facie capable of falling within the provisions of that instrument and whether, as
a consequence, the dispute is one which the Court has jurisdiction ratione materiae to
entertain pursuant to Article 35, paragraph 2, of the Convention . . .”48
Then, adopting a more general stance, the Court took the firm view that:
“The purpose of Article 4 of the Convention is to ensure that the States parties
to the Convention perform their obligations in accordance with the principles of
sovereign equality, territorial integrity of States and non-intervention in the domestic
affairs of other States. The provision does not appear to create new rules concerning
the immunities of holders of high-ranking office in the State or incorporate rules of
customary international law concerning those immunities. Accordingly, any dispute
which might arise with regard to ‘the interpretation or application’ of Article 4 of the
Convention could relate only to the manner in which the States parties perform their
obligations under that Convention. It appears to the Court, however, that the alleged
dispute does not relate to the manner in which France performed its obligations under
Articles 6, 12, 14 and 18 of the Convention, invoked by Equatorial Guinea. The
alleged dispute, rather, appears to concern a distinct issue, namely whether the
Vice-President of Equatorial Guinea enjoys immunity ratione personae under
46 MEG, para. 5.1.
47 See, in particular, Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999, p. 137, para. 38; Oil Platforms (Islamic Republic of Iran v. United States of America),
Judgment, I.C.J. Reports 2003, p. 16.
48 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 47.
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customary international law and, if so, whether France has violated that immunity by
instituting proceedings against him.”49
57.It is therefore within the strict limits of the subject-matter of the dispute, as described in
Equatorial Guinea’s Application and Memorial and as delineated by the conventions on which it
seeks to establish the Court’s jurisdiction, that such jurisdiction must be assessed.
III. The abusive nature of the Application
58. During the hearings on the request for the indication of provisional measures, counsel for
France asserted that the proceedings initiated by Equatorial Guinea were abusive in two respects50.
Equatorial Guinea links its claims to conventional provisions which, given the facts of the case,
cannot be regarded as a credible basis for the exercise of the Court’s jurisdiction (A) and may be
construed as an abuse of rights (B).
A. Equatorial Guinea’s claim is an abuse of the International Court of Justice
59. In its Order of 7 December 2016, the Court held that in the present case, there being no
manifest lack of jurisdiction, it could not accede to France’s request that the case be removed from
the List51. Nonetheless, the case’s referral to the Court is completely artificial and therefore appears
to be an abuse of process.
60. Moreover, until now, Equatorial Guinea’s treatment of the question of the Court’s
jurisdiction has been particularly cursory. In its introduction to the section of its Memorial devoted
to this subject, Equatorial Guinea takes a rather odd stance, stating that “[since t]he Order
indicating provisional measures dated 7 December 2016 was issued by the Court a few days before
the text of this Memorial was finalized[, it] was unable to examine it in detail and reserves the right
to address the jurisdiction of the Court in greater detail at a later date”52. Yet in the light of France’s
oral arguments on 18 and 19 October 201653, it might have been advisable for Equatorial Guinea to
elaborate on this matter.
61. It is a “fundamental principle”, recalled consistently by the International Court of
Justice54 and its predecessor55, that “no State may be subject to its jurisdiction without its
49 Ibid., para. 49.
50 CR 2016/15, 18 Oct. 2016, p. 23, para. 17 (Pellet) and p. 35, para. 12 (Ascensio).
51 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of provisional
measures, Order of 7 Dec. 2016, para. 70.
52 MEG, para. 5.2.
53 See CR 2016/15, 18 Oct. 2016, and CR 2016/17, 19 Oct. 2016.
54 See, for example, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment of 3 Feb. 2015, para. 88, and Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2006, p. 32, para. 64.
55 See, for example, Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16;
Serbian Loans, Judgment No. 14, 1929, P.C.I.J., Series A, No. 20, pp. 16-17; Phosphates in Morocco, Judgment, 1938,
P.C.I.J., Series A/B, No. 74, p. 23.
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consent”56. A basis of jurisdiction must be established before the merits of a case are addressed.
Equatorial Guinea’s approach in these proceedings is the reverse. The Applicant sets out its version
of the facts underlying the dispute, alleges breaches by France of its international obligations, and
requests the Court to make a finding to that effect, but remains evasive about the basis for the
exercise of the Court’s jurisdiction in the case.
62. Apart from the alleged diplomatic status of the building located at 42 avenue Foch,
which is artificially linked to the Vienna Convention on Diplomatic Relations57, all of
Equatorial Guinea’s claims in this case are based on customary international law, which it seeks to
invoke through Article 4 of the Palermo Convention in respect of: the purported violations by
France quod non — of the principles of sovereign equality of States and non-intervention in the
domestic affairs of other States; the personal immunity said to be enjoyed by Mr. Teodoro Nguema
Obiang Mangue as Second Vice-President in charge of Defence and Security; as well as the status
of the building located at 42 avenue Foch as property of Equatorial Guinea.
63. Regarding the Court’s jurisdiction to entertain Equatorial Guinea’s claims relating to the
“failure to respect the immunity of the building at 42 avenue Foch in Paris as property of
Equatorial Guinea used for government non-commercial purposes”, the Applicant confines itself to
the terse assertion that “[p]rotection of the property of foreign States from measures of execution
by the forum State is based on customary international law, which is incorporated into the Palermo
Convention”58. No specific provision of the Palermo Convention is mentioned, not even Article 4.
64. As France explained during the hearings on the request for provisional measures, there is
a dispute between the Parties59. However, there is no provision binding the Parties that confers
jurisdiction on the Court over that dispute. To circumvent France’s lack of consent to the Court’s
jurisdiction, Equatorial Guinea uses compromissory clauses provided for in international
agreements, to which France is a party, without ever establishing precisely which conventional
provisions it is whose interpretation or application it in fact believes to be the subject of the present
dispute.
65. In support of its claims, Equatorial Guinea repeatedly refers in its Memorial to a number
of cases brought before the Court in the past, and in particular to the cases concerning the Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)60 and Jurisdictional
Immunities of the State (Germany v. Italy: Greece intervening)61. Equatorial Guinea cites them in
particular in its exposition of France’s alleged violations of the principles of general international
law, in respect of the immunities said to be enjoyed by Mr. Teodoro Nguema Obiang Mangue and
the building located at 42 avenue Foch as diplomatic premises and as property of Equatorial
Guinea. It is worth pointing out that in the Arrest Warrant and Jurisdictional Immunities cases the
Court’s jurisdiction was based on declarations by which the States parties had consented to the
compulsory jurisdiction of the Court in
56 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 76, para. 76.
57 See Chap. 3 below.
58 MEG, para. 8.52.
59 CR 2016/17, 19 Oct. 2016, pp. 8-9, para. 3 (Pellet).
60 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, p. 3.
61 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment,
I.C.J. Reports 2012 (I), p. 99.
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“all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation”62.
66. The acceptance of such compromissory clauses authorizes the Court to examine claims
relating to the application or interpretation of principles and rules of customary international law.
The question of whether France has violated the alleged immunities of the Second Vice-President
of the Republic of Equatorial Guinea in charge of Defence and Security, and of the building located
at 42 avenue Foch as State property, is most certainly within the purview of customary
international law. Equatorial Guinea itself states as much63. The scope of Article 35, paragraph 2,
of the Palermo Convention is much more limited. As the Court observed in its Order of
7 December 2016,
“[a]ccordingly, any dispute which might arise with regard to ‘the interpretation or
application’ of Article 4 of the Convention could relate only to the manner in which
the States parties perform their obligations under that Convention. It appears to the
Court, however, that the alleged dispute does not relate to the manner in which France
performed its obligations under Articles 6, 12, 14 and 18 of the Convention, invoked
by Equatorial Guinea. The alleged dispute, rather, appears to concern a distinct issue,
namely whether the Vice-President of Equatorial Guinea enjoys immunity ratione
personae under customary international law and, if so, whether France has violated
that immunity by instituting proceedings against him.”64
The Parties’ consent to the exercise of the Court’s jurisdiction expressed in the Palermo
Convention is therefore much more strictly circumscribed than in the cases that Equatorial Guinea
cites in support of its claims.
67. Equatorial Guinea also relies on the case concerning Certain Questions of Mutual
Assistance in Criminal Matters, the only proceedings which have led to the Court ruling on the
basis of forum prorogatum. On 9 January 2006, Djibouti filed an Application with the Court
pursuant to Article 38, paragraph 5, of the Rules of Court. By letter dated 25 July 2006, France
consented to the Court’s jurisdiction to entertain the Application, being careful to limit that consent
62 In the Arrest Warrant case, the Court’s jurisdiction was based on the declarations accepting the compulsory
jurisdiction of the Court, in accordance with Article 36, paragraph 2, of the Statute of the Court. In the case concerning
Jurisdictional Immunities, the Court’s jurisdiction was based on the provisions of Article 1 of the European Convention
for the Peaceful Settlement of Disputes.
63 See, in particular, MEG, pp. 41-42, para. 3.64; p. 99, para. 7.8; p. 124, para. 7.62; p. 130, para. 8.3; p. 151,
para. 8.52.
64 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of provisional
measures, Order of 7 Dec. 2016, para. 49.
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very strictly to the framework set by the Convention65. The Republic of Djibouti claimed, inter
alia, violations by France of the principle of sovereign equality of States and of the immunities of
representatives of the Djiboutian State, under customary international law, as a result of procedural
steps taken by the French courts. This led France to raise objections to the Court’s jurisdiction,
since Djibouti had sought to extend the Court’s remit to facts which did not fall strictly within the
subject-matter of the dispute, as defined by the Application instituting proceedings66. The Court
partly allowed France’s objections67.
68. By a letter dated 25 September 2012, the Registry of the Court informed France that
Equatorial Guinea had filed an Application instituting proceedings on the basis of Article 38,
paragraph 5, of the Rules of Court, including a request for provisional measures68. This Application
reflected a degree of uncertainty about the possible bases of the Court’s jurisdiction. France did not
consent to the exercise of the Court’s jurisdiction, and does not intend to do so in the present case,
given that the facts which gave rise to the filing of the 2012 Application are the same as those
underlying the present proceedings, namely, the initiation by the French courts of proceedings
against Mr. Teodoro Nguema Obiang Mangue following the filing of a complaint by Transparency
International France on 2 January 2008, and the searches and attachment of the building located at
42 avenue Foch in the context of those proceedings69. Equatorial Guinea’s submissions are similar
to those in its 2012 Application, in which it contended that:
“the opening of a judicial investigation in the French Republic with regard to the
handling and laundering of misappropriated foreign public funds is contrary to
international law, since it violates the principle of non-interference in the internal
affairs of another State, the principle of the equality of States, and the sovereignty
of the Republic of Equatorial Guinea;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the opening of that investigation and the issuance of an arrest warrant against the
Second Vice-President of the Republic of Equatorial Guinea in charge of Defence
and State Security violate, at the very least, the most well-established principles of
international law regarding the jurisdictional immunity enjoyed by foreign Heads
of State and high-ranking representatives of the State;
the searches undertaken and the attachment of the diplomatic mission of the
Republic of Equatorial Guinea in the French Republic violate the immunity
accorded to diplomatic premises and their furnishings”70.
65 In his letter dated 25 July 2006, the French Minister for Foreign Affairs thus indicated that: “The present
consent to the Court’s jurisdiction is valid only for the purposes of the case, within the meaning of Article 38,
paragraph 5, i.e., in respect of the dispute forming the subject of the Application and strictly within the limits of the
claims formulated therein by the Republic of Djibouti” (emphasis added). See also Certain Questions of Mutual
Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, pp. 200-201, paras. 48-49.
66 See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment,
I.C.J. Reports 2008, pp. 201-213, paras. 59-95. See also the Counter-Memorial filed by the French Republic, 13 July
2007, pp. 8-16.
67 Ibid., pp. 209-213, paras. 85-95, and pp. 246-247, para. 205.
68 Letter No. 140831 from the Registrar of the Court to the Minister for Foreign Affairs of the French Republic,
25 Sep. 2012 (Ann. 7).
69 See paras. 13-29 above.
70 Application of Equatorial Guinea, 22 Sep. 2012, p. 17.
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69. The request for provisional measures accompanying the Application was also very
similar to that of 29 September 2016. Equatorial Guinea requested the Court to order:
“(i) the immediate suspension of the proceedings being conducted by the investigating
judges of the Paris Tribunal de grande instance and (ii) the immediate suspension of
the effects of the arrest warrant issued by the investigating judges of the Paris Tribunal
de grande instance against Mr. Teodoro Nguema Obiang Mangue, and, in any event,
(iii) the restitution of the movable and immovable property belonging to the Republic
of Equatorial Guinea attached by the said judges in the context of the investigation”71.
70. Since France did not accept the exercise of the Court’s jurisdiction, Equatorial Guinea
devised a strategy to circumvent that lack of consent.
71. First, on 4 November 2014, Equatorial Guinea acceded to the Optional Protocol to the
Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes,
and publicly announced its intention to bring France before the Court72. As we will show below73,
Equatorial Guinea has still not specified, even at this advanced stage of the proceedings, which
provisions of the Vienna Convention it is whose interpretation or application it believes to be at the
origin of the dispute with France. The reason is very simple: the dispute which Equatorial Guinea
wishes the Court to settle does not concern violations by France of the provisions invoked (in fact
of the single provision invoked, Article 22) of the Vienna Convention.
72. Second, in order to bring before the Court the question of Mr. Teodoro Nguema
Obiang Mangue’s alleged immunity from foreign criminal jurisdiction which undoubtedly lies
at the heart of the dispute between the Parties — Equatorial Guinea sought to find another
convention on which to hang its claim. It chose the Palermo Convention, to which France and
Equatorial Guinea have been parties since 29 October 2002 and 10 September 2007 respectively
(they were therefore already bound by that text when the Application of 25 September 2012 was
filed, although Equatorial Guinea had relied on France giving its consent pursuant to Article 38,
paragraph 5, of the Rules of Court, and had not invoked the Palermo Convention). As the Court
itself observed in its Order, this case does not concern a question of interpretation or application of
the provisions of that Convention74. And Equatorial Guinea makes no real attempt to convince us
otherwise75.
73. Equatorial Guinea’s manipulation of the proceedings before the International Court of
Justice is notably reflected in the press releases that it publishes at each procedural step. For
example, regarding the Court’s Order of 7 December 2016, Equatorial Guinea stated in several
press releases that:
“[T]he Government of Equatorial Guinea is satisfied because, in the ruling
given by the International Court of Justice in The Hague this 7th December 2016,
there is clear recognition of the diplomatic nature of the building located at
71 Ibid., p. 19.
72 “France Guinée Équatoriale: porte de sortie en vue pour Teodorín?”, Jeune Afrique, 13 March 2015;
available at: http://www.jeuneafrique.com/226650/politique/france-guin-e-quatoriale-p…,
in French only, site consulted on 21 March 2017 (Ann. 8).
73 See Chap. 3 below.
74 See para. 66 above.
75 See para. 60 above.
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42, Avenida Foch, in Paris, and as such, recognition that the property does not
constitute ‘dishonestly acquired goods’. The Equatoguinean State has reiterated its
claim to ownership of this property, which was the property of the Equatoguinean
State, but the French party refused to recognise this, refusing to yield on this point.
The recognition that the State of Equatorial Guinea is the legitimate owner of
the building, with all the objects it contains, is thus recognition that it is not
‘dishonestly acquired goods’, and it is also evidently proof of the judicial farce that
French justice is unilaterally trying to serve up.
On demonstrating that the building is not ‘dishonestly acquired goods’, the
French party should have finally withdrawn the accusation against the Vice-President
of the Republic of Equatorial Guinea, as it was unsupported by the basis of the main
accusation, and thus recognise unambiguously the immunity of
H.E. Nguema Obiang Mangue.”76
74. It goes without saying that France does not share this rather surprising reading of the
Court’s Order on Equatorial Guinea’s request for the indication of provisional measures.
Nevertheless, this statement exposes Equatorial Guinea’s strategy in this case: to use the Court as a
means to obstruct the proceedings brought against Mr. Teodoro Nguema Obiang Mangue before
the French courts.
75. More generally, it is clear from the above that by invoking the provisions of the Vienna
and Palermo Conventions on the compulsory settlement of disputes between States parties,
Equatorial Guinea is seeking to circumvent the “fundamental principle that no State may be subject
to [the] jurisdiction [of the Court] without its consent”77. Furthermore, it is seeking to shore up a
situation founded on a manifest abuse of rights.
B. Equatorial Guinea’s claim seeks to consolidate an abuse of rights
76. The timing of the events which gave rise to these proceedings is sufficient in itself to
show that Equatorial Guinea’s claim is an abuse of the rights and obligations invoked by it.
According to the definition in the Dictionnaire de droit international public, an abuse of rights
occurs when “a State exercises a right, power or jurisdiction in a manner or for a purpose for which
that right, power or jurisdiction was not intended, for example to evade an international obligation
or obtain an undue advantage”78.
76 Press release of the spokesperson for the Government of the Republic of Equatorial Guinea, 7 Dec. 2016,
Malabo (English version available on the official website of the Government of the Republic of Equatorial Guinea at
http://www.guineaecuatorialpress.com/noticia.php?id=9000&lang=en; original text in Spanish available at
http://www.guineaecuatorialpress.com/noticia.php?id=9000&lang=es; site consulted on 20 March 2017) (Ann. 9). See
also press release of the Representation of Equatorial Guinea in The Hague, 8 Dec. [2016] (English version available on
the official website of the Government of the Republic of Equatorial Guinea at
http://www.guineaecuatorialpress.com/noticia.php?id=9002&lang=en; original text in Spanish available at
http://www.guineaecuatorialpress.com/noticia.php?id=9002&lang=es) (Ann. 10); and press release of the Equatorial
Guinea Press and Information Office, 9 Dec. 2016 (English version available on the official website of the Government
of the Republic of Equatorial Guinea at http://www.guineaecuatorialpress.com/noticia.php?id=9005&lang=en; original
text in Spanish available at http://www.guineaecuatorialpress.com/noticia.php?id=9005&lang=es) (Ann. 11).
77 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 76, para. 76.
78 J. Salmon (ed.), Dictionnaire de droit international public, Bruylant, Brussels, 2001, pp. 3-4. [Translation by
the Registry.]
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77. This is a “general principle of international law”, and even a “general principle of law”79.
The Court has recognized that it applies automatically in the international legal order, as a
necessary corollary of the principle of good faith, in the form of both an abuse of process and an
abuse of rights80. Numerous international conventions expressly recall that States parties must fulfil
their obligations in good faith and not abuse the rights to which they are entitled81. It is, moreover,
the very essence of the law of treaties, which is dominated by the principle of pacta sunt servanda,
whereby “[e]very treaty in force is binding upon the parties to it and must be performed by them in
good faith”82.
78. Privileges and immunities are granted for a legitimate purpose, and help ensure the
independence of foreign States, in accordance with the principle of the sovereign equality of States
and the territorial sovereignty of the host State. Their very purpose, however, leaves them open to
abuse. In light of the growing mistrust of privileges and immunities which are nevertheless vital
for States’ external action— we must be vigilant about preventing attempts to abuse them, which
may ultimately call into question the continued existence of those fundamental rights. It was with
that risk in mind that the drafters of the Vienna Convention on Diplomatic Relations made a point
of recalling, in the preamble to that text, that “the purpose of such privileges and immunities is not
to benefit individuals but to ensure the efficient performance of the functions of diplomatic
missions as representing States”83.
79. A large number of international agreements on privileges and immunities contain similar
provisions84. The purpose of privileges and immunities is not to benefit the individuals who enjoy
them, but to safeguard the independence of the State and its representatives abroad. The application
of rules on immunities must not shield their beneficiaries — be they individuals or property —
79 DSB, Shrimps, Report of the Appellate Body (WT/DS58/AB/R), 12 Oct. 1998.
80 See Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
p. 30. See also Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167;
Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 142; Ambatielos (Greece v. United Kingdom),
Merits, Judgment, I.C.J. Reports 1953, p. 23; Barcelona Traction, Light and Power Company, Limited (New
Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 39, para. 56; Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46; Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 473, para. 49; Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, I.C.J. Reports 1992, p. 255, paras. 37-38; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment,
I.C.J. Reports 1996, p. 622, para. 46.
81 See, in particular, the Convention on Rights and Duties of States of 26 Dec. 1933, Art. 3; the Convention for
the Protection of Human Rights and Fundamental Freedoms of 4 Nov. 1950, Art. [17] “Prohibition of abuse of rights”;
the Convention on the High Seas of 29 Apr. 1958, Art. 2; the United Nations Convention on the Law of the Sea of
10 Dec. 1982, Arts. 294 and 300 “Good faith and abuse of rights”; the Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10 Dec. 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Art. 34.
82 Vienna Convention on the Law of Treaties, 23 May 1969, Art. 26. France is not a party to the Convention, but
considers that, on this point, it reflects the state of customary international law.
83 Vienna Convention on Diplomatic Relations, 18 Apr. 1961, fourth paragraph of the preamble.
84 See, in particular, the Convention on the Privileges and Immunities of the United Nations of 13 Feb. 1946,
Sections 20 and 21; Supplementary Protocol No. 1 to the Convention for European Economic Co-operation on the Legal
Capacity, Privileges and Immunities of the Organisation of 16 Apr. 1948, Art. 10; the Agreement between the
Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding
the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory of 2 July 1954,
Art. 21; the Convention on Special Missions of 8 Dec. 1969, seventh paragraph of the preamble; the Agreement on the
Privileges and Immunities of the International Criminal Court of 9 Sep. 2002, Art. 24, para. 1, and Art. 25; the
Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea of 23 May 1997,
Art. 19.
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from ordinary legal proceedings brought for purposes other than those for which such protections
have been granted.
80. As we shall demonstrate in these written pleadings85, in this case, Equatorial Guinea’s
use of the provisions of the United Nations Convention against Transnational Organized Crime and
the Vienna Convention on Diplomatic Relations is legally abusive, in its claim for immunities for
Mr. Teodoro Nguema Obiang Mangue and for the building at 42 avenue Foch.
81. Moreover, in a letter to the French President dated 14 February 2012, the President of the
Republic of Equatorial Guinea explicitly acknowledged that the reason for invoking the diplomatic
nature of the building located at 42 avenue Foch was to protect the building from criminal
proceedings:
“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 acquisition of assets, he decided to resell the said building to the
Government of the Republic of Equatorial Guinea.”86
82. The “pressures” are the initiation of judicial proceedings. And both the resale of the
property the date of which varies from one declaration to the next87— and the invocation of its
diplomatic status are designed to obstruct those proceedings.
83. The date of 14 February 2012 is none other than the first day of the searches conducted
in the building by the French authorities. On the same day, Equatorial Guinea also issued three
Notes Verbales:
the first from the Ministry of Foreign Affairs of Equatorial Guinea to the French Ministry of
Foreign Affairs regretting 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”88;
the second from the Chargée d’affaires of Equatorial Guinea, Ms Bindang Obiang, indicating
that she was “presently in the residence belonging to the Government of Equatorial Guinea
purchased on 19 September 2011, at 42 avenue Foch, in Paris, which is the place of residence
of the Permanent Delegation of the Republic of Equatorial Guinea to UNESCO” and that a
search was then underway “contrary to the Vienna Convention”89;
85 See Chaps. 2 and 3 below.
86 Letter from the President of Equatorial Guinea to the French President, 14 Feb. 2012 (No. 5 of the additional
documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for provisional
measures).
87 See paras. 24-26 above.
88 Note Verbale No. 251/12 from the Ministry of Foreign Affairs of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 14 Feb. 2012 (No. 6 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
89 Note Verbale No. 173/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 14 Feb. 2012 (No. 7 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
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and the last one from the Permanent Delegation of Equatorial Guinea to UNESCO’s Protocol
Unit “informing them that the official residence of the Permanent Delegate of Equatorial
Guinea to UNESCO is located at 42 avenue Foch 75016 Paris, property of the Republic of
Equatorial Guinea”90.
84. On the day of the searches targeting the assets acquired in France by
Mr. Teodoro Nguema Obiang Mangue, Equatorial Guinea (i) admitted, in a letter from its
President, that the building at 42 avenue Foch was resold to protect him from judicial “pressures”,
(ii) protested against the searches carried out at the “official residence of the Permanent Delegate of
Equatorial Guinea to UNESCO”, (iii) and informed UNESCO, for the first time, that the building
was now the official residence of the Permanent Delegate.
85. A recent letter, dated 19 January 2017, from the President of Equatorial Guinea to the
French President, contained an annex entitled “Note seeking a diplomatic resolution of the
dispute”. Surprisingly, it invoked the bilateral Agreement between France and Equatorial Guinea
on the mutual promotion and protection of investments as an alternative means to resolve the
dispute:
“The Agreement on the mutual protection of investments dated 3 March 1982,
by which both States are bound, provides for inter-State disputes concerning its
interpretation and application to be resolved by diplomatic means.
Since Equatorial Guinea has consistently maintained that the assets attached by
the French courts were all acquired lawfully and do not represent the proceeds of
misappropriated public funds or of an offence of any kind, consideration must be
given to the question of their protection by France under the aforementioned
Agreement.
That being the case, in the context of diplomatic discussions between the two
States provided for under Article 11 of the said Agreement, and before any decision
by the French courts on the substance of the dispute, the two States could agree to
consider that the assets lawfully acquired in France meet the definition of
‘investments’ within the meaning of Article 1 of the same Agreement and that,
consequently, France has a duty to protect them.”91
86. In keeping with its consistent position in this case, France indicated that the facts
mentioned were the subject of judicial decisions and ongoing legal proceedings, and that
consequently it was not possible to accept the offer to settle the dispute by the means proposed by
Equatorial Guinea92. However, this initiative demonstrates Equatorial Guinea’s willingness to
invoke with a blatant disregard for legal credibility — any conventional provision that provides
for a dispute settlement mechanism and binds the Parties, in order to halt the ongoing judicial
proceedings. And it assumes that its referral of the case to the Court will achieve precisely that:
90 Note Verbale No. 011/12 from the Embassy of the Republic of Equatorial Guinea to the UNESCO Protocol
Unit, 14 Feb. 2012 (No. 8 of the additional documents communicated by France on 14 Oct. 2016 in connection with
Equatorial Guinea’s request for provisional measures).
91 Annex to the letter from the President of Equatorial Guinea to the French President, “Note seeking a diplomatic
resolution of the dispute”, 19 Jan. 2017 (Ann. 12).
92 Letter from the French President to the President of Equatorial Guinea, 16 Feb. 2017 (Ann. 13).
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“Thus, [the Note concludes,] a permanent solution to the dispute between the
two States having been found, it will only remain for the Republic of
Equatorial Guinea to end the proceedings pending before the International Court of
Justice.”93
87. This has all the hallmarks of an abuse of rights. As France’s counsel explained during the
hearings on the request for provisional measures94, in this case Equatorial Guinea is seeking to
abuse its international rights and obligations in order to obstruct the proper administration of the
judicial proceedings instituted in France, both by suddenly and unexpectedly transforming a private
residence into “premises of the mission”, and by appointing its owner to increasingly eminent
political positions as the investigation instigated by Transparency International’s complaint
proceeds.
88. For the reasons set out above, in light of the abusive nature of the Application, France
requests the Court to adjudge and declare that it lacks jurisdiction to rule on the Application filed
by Equatorial Guinea on 13 June 2016. Furthermore, France raises the following objections
regarding the Court’s lack of jurisdiction on the basis of the Convention against Transnational
Organized Crime (Chapter 2), and the Court’s lack of jurisdiction on the basis of the Vienna
Convention on Diplomatic Relations and its Optional Protocol concerning the Compulsory
Settlement of Disputes (Chapter 3).
93 Annex to the letter from the President of Equatorial Guinea to the French President, “Note seeking a diplomatic
resolution of the dispute”, 19 Jan. 2017 (Ann. 12).
94 See CR 2016/15, 18 Oct. 2016, pp. 23-32, paras. 17-25 (Pellet) and p. [35], paras. 11-12 (Ascensio).
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CHAPTER 2
THE COURT’S LACK OF JURISDICTION ON THE BASIS OF THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
89. In both the Application instituting proceedings and the Memorial of 3 January 2017,
Equatorial Guinea contends that the Court has jurisdiction in the present case on the basis of the
United Nations Convention against Transnational Organized Crime. To that end, it invokes
Article 35, paragraph 2, of the Convention, pursuant to which a State party may refer any dispute
between two or more States parties “concerning the interpretation or application of this
Convention” to the International Court of Justice, if the parties to the dispute have been unable to
settle it by negotiation or have not agreed on the organization of an arbitration within a period of
six months.
90. The preliminary objection raised by France concerns the Court’s lack of jurisdiction
ratione materiae under the Palermo Convention, since the dispute submitted by Equatorial Guinea
does not relate to “the interpretation or application” of that Convention.
91. The Court’s jurisdiction ratione materiae was already discussed during the proceedings
on the request for provisional measures. Equatorial Guinea’s line of argument at that time failed to
convince the Court, which held, in its Order of 7 December 2016, that it did not have prima facie
jurisdiction in the present case on the basis of the Palermo Convention95. The Memorial filed by
Equatorial Guinea on 3 January 2017 contains no arguments likely to be any more convincing
about the existence of such a basis of jurisdiction.
92. To establish a link between the present case and the Palermo Convention, Equatorial
Guinea contends that Article 4 of the Convention “incorporates rules of customary international
law” concerning the immunities both “of holders of high-ranking office in a State” and the building
“as State property used or intended for use by the State for government non-commercial purposes”,
rules which it links to the principle of sovereign equality96. It goes on to state that this is a question
of the interpretation and application of Article 4 “read in conjunction with other provisions of the
Convention”97.
93. France, for its part, is of the view that none of the provisions of the Palermo Convention
invoked is at issue in the present case and that, therefore, the Court has no jurisdiction on that basis.
This is clear from an examination of Article 4 (I) and the obligations laid down by the
Convention (II).
I. Article 4 of the Convention
94. Article 4 of the Palermo Convention, entitled “Protection of sovereignty”, is a general
clause recalling several fundamental principles of international law. It reads as follows:
95 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of provisional
measures, Order of 7 Dec. 2016, para. 50.
96 MEG, para. 5.10.
97 MEG, paras. 5.10-5.11.
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“1. States Parties shall carry out their obligations under this Convention in a
manner consistent with the principles of sovereign equality and territorial integrity of
States and that of non-intervention in the domestic affairs of other States.
2. Nothing in this Convention entitles a State Party to undertake in the territory
of another State the exercise of jurisdiction and performance of functions that are
reserved exclusively for the authorities of that other State by its domestic law.”
95. The language of the first paragraph clearly establishes that sovereign equality, territorial
integrity and non-intervention are “principles”, not independent obligations, and that they concern
the way in which States perform their “obligations under this Convention”, which are set out
elsewhere in the treaty.
96. The ordinary meaning of the words is perfectly consistent with the object and purpose of
the treaty. The Convention is in no way intended to organize, in a general way, the legal relations
between States in light of the principles mentioned, and, in particular, does not seek to create a
system of immunities or establish the status of property belonging to the States parties. The
Palermo Convention concerns transnational organized crime and its purpose, according to its first
article, is “to promote cooperation to prevent and combat transnational organized crime more
effectively”. As the United Nations General Assembly explained at the time the Convention was
adopted, the objective is to provide
“an effective tool and the necessary legal framework for international cooperation in
combating, inter alia, such criminal activities as money-laundering, corruption, illicit
trafficking in endangered species of wild flora and fauna, offences against cultural
heritage and the growing links between transnational organized crime and terrorist
crimes”98.
97. The Palermo Convention thus falls into the category of conventions whose objective is to
combat transnational threats by harmonizing criminal legislation and facilitating judicial
co-operation between States, in respect of specific offences99. Other conventions adopted during
the same period have the same objective and adhere to a similar formula100.
98. In its Memorial, Equatorial Guinea seeks to extend the object of the Convention unduly
by maintaining confusion between the obligations themselves and the manner in which they must
be performed. Despite acknowledging that Article 4 must be “read in conjunction” with the other
provisions of the Convention, it contends that Article 4 contains an “independent obligation” to
comply with customary international law in general101. In so doing, it attempts to ascribe to the
Convention an object that it does not have, in order to broaden the scope of the consent in
Article 35, paragraph 2, thereof102.
98 Resolution 55/25 adopted by the United Nations General Assembly on 15 Nov. 2000, preamble.
99 Neil Boister, “The concept and nature of transnational criminal law”, in Neil Boister and Robert J. Currie
(eds.), Routledge Handbook of Transnational Criminal Law, London/New York, Routledge, 2015, pp. 16-18.
100 The International Convention for the Suppression of Terrorist Bombings of 15 Dec. 1997 (UNTS, Vol. 2149,
p. 256); the International Convention for the Suppression of the Financing of Terrorism of 9 Dec. 1999 (UNTS,
Vol. 2178, p. 197); the United Nations Convention against Corruption of 31 Oct. 2003 (UNTS, Vol. 2349, p. 41); the
International Convention for the Suppression of Acts of Nuclear Terrorism of 13 Apr. 2005 (UNTS, Vol. 2445, p. 89).
101 MEG, para. 5.18.
102 See paras. 46-48 and 63-64 above.
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99. The Court nevertheless stated very clearly, in its Order of 7 December 2016, that the
purpose of Article 4 is not to create new obligations concerning the immunities of agents of the
State, of any rank, or to incorporate the rules of customary international law concerning those
immunities103. This observation is perfectly consistent with its jurisprudence on general clauses that
refer to principles of general international law. In the Oil Platforms case, the Court similarly
considered that a conventional formulation of this kind could not be interpreted “in isolation from
the object and purpose of the Treaty” and that it must “be regarded as fixing an objective, in the
light of which the other Treaty provisions are to be interpreted and applied”104.
100. Furthermore, in its Memorial, Equatorial Guinea supports the idea that each of the two
paragraphs of Article 4 is independent, and that the second paragraph of Article 4 provides
“additional protection for State sovereignty”, without specifying its nature105. Yet the content of
that provision quite obviously relates to the principles of sovereign equality, territorial integrity and
non-intervention mentioned in the first paragraph. As a commentator notes:
“This paragraph is the counterpoint of the first, stating what States Parties may
not do if they are to observe the principle of territorial integrity. Of course the whole
Convention seeks to improve international cooperation, which in many contexts will
produce a situation in which agents of one State Party will perform functions within
the territory of another State normally reserved to its own competent authorities. This
activity will be consensual and so not in breach of the principle of territorial
integrity.”106
101. The second paragraph is therefore merely a reformulation, in a negative form, of the
principle of territorial integrity mentioned in the first paragraph, in the context of judicial
co-operation. It is therefore difficult to see how the present case could be connected in any way to
the second paragraph of Article 4, since judicial co-operation is not the subject of the dispute
submitted to the Court by Equatorial Guinea, and since France has not exercised any jurisdiction or
performed any function “within the territory” of Equatorial Guinea.
102. In support of its position, Equatorial Guinea cites yet more conventions and draws on
the Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Article 2 of which served as a model for Article 4 of the Palermo
Convention107. The passage cited, however, confirms that the drafters of the Vienna Convention on
Narcotic Drugs and Psychotropic Substances were merely seeking to reiterate the principles of
sovereign equality and non-intervention. Above all, the Commentary provides some very revealing
insights into what such a provision really means:
“2.20. Paragraph 3 is conceptually linked to the preceding paragraph and is
complementary to it insofar as practical implications are concerned. Whereas
paragraph 2 lays down, in affirmative language, a code of conduct to which parties
should conform in fulfilling their obligations under the Convention, paragraph 3 sets
103 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, para. 49.
104 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment,
I.C.J. Reports 1996, pp. [813-814], paras. 27-28.
105 MEG, para. 5.19.
106 David McClean, Transnational Organized Crime — A Commentary on the UN Convention and its Protocols,
Oxford University Press, 2007, p. 58.
107 MEG, para. 5.21.
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out, in negative language, what parties should not do if they are to comply with the
accepted customary norms of international law.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.23. The conduct of inquiries or investigations, including covert operations, on
the territory of another State without its consent, in relation to criminal offences
established in accordance with article 3, is not permissible . . .
2.24. Similarly, there is no general right of hot pursuit across land
boundaries.”108
None of this is at issue in the present case.
103. Finally, the travaux préparatoires of the Palermo Convention make no mention of an
independent obligation, in respect of either the first or second paragraph, both of which were
borrowed from the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances109. The Commentary on the latter Convention even explicitly notes that the equivalent
article “has the import of a statement of guiding principles for a correct interpretation and proper
implementation of the substantive articles of the Convention”110. The same is true of Article 4 of
the Palermo Convention111. That the draft was restructured at some point during the negotiations to
create Article 4, as Equatorial Guinea notes112, is of no particular significance as regards the
existence of an independent obligation.
II. The obligations laid down by the Convention
104. Equatorial Guinea now concedes that, to be applicable, Article 4 of the Palermo
Convention should be “read in conjunction” with other provisions of the Convention. Unless a link
can be established between the subject-matter of the dispute and the conventional obligations
provided for in other articles of the Convention, it must be concluded that the Court does not have
jurisdiction ratione materiae.
105. As the Court noted in its Order of 7 December 2016, the obligations under the
Convention mainly concern the adoption of the necessary measures, in domestic law, to criminalize
certain transnational offences113. The other provisions seek to facilitate judicial co-operation
between the States parties. Regarding the main category of obligations, one thing is clear: in the
present case, Equatorial Guinea is certainly not accusing France of failing to criminalize the
offences mentioned in the Palermo Convention in its domestic legislation, or of failing to establish
the jurisdiction of its national courts over those same offences. Equally obviously, Equatorial
108 United Nations, Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1988, New York, 2000, doc. E/CN.7/590, pp. [46-47].
109 See United Nations, Economic and Social Council, Commission on Crime Prevention and Criminal Justice,
doc. [E/CN.15/1998/5], 18 Feb. 1998, pp. 19-20.
110 United Nations, Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1988, New York, 2000, doc. E/CN.7/590, p. [41], para. 2.5.
111 The Memorial also cites various texts relating to other conventions, which are not legally binding and cannot
be treated as travaux préparatoires (para. 5.23). None of the citations speaks of an independent obligation.
112 MEG, para. 5.22.
113 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, para. 48.
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Guinea has never claimed to have a dispute with France about judicial co-operation. Consequently,
no question of interpretation or application of a conventional obligation is at issue.
106. The link established by Equatorial Guinea between the present case and the Palermo
Convention is in fact based on two contrivances. The first, which was partially dispelled in the
Memorial, is to dissociate Article 4 from the other provisions of the Convention, by claiming that
they should be read as independent obligations; this has already been addressed in Section I of this
chapter. The second is to contend that the initiation of legal proceedings in the domestic courts of a
State party to the Palermo Convention, relating to acts likely to fall within a domestic criminal
classification corresponding to the offences mentioned in the Palermo Convention, amounts to
implementing that Convention114, or even to “apply[ing]” it115. That is absolutely not the case, as is
shown by both the overall scheme of the conventional obligations (A) and a precise analysis of the
provisions invoked by Equatorial Guinea (B).
A. The overall scheme of the obligations in the Palermo Convention
107. The purpose of the Palermo Convention is certainly not to provide a legal basis in itself
for criminal proceedings. The international obligation consists merely of the adoption, where
necessary, of rules criminalizing certain offences in domestic law. The State implements the
Convention by ensuring that its legal system is in conformity with those provisions. Proceedings
are conducted by the State’s judicial authorities on the basis of criminal legislation that is specific
to each State, in accordance with the model for all the conventions on transnational crime116. The
State thus applies its own law.
108. In addition, it should be noted that the Palermo Convention contains no provision on the
implementation of criminal legislation in specific cases, and in particular no obligation to
investigate or prosecute. There is thus a notable difference between the Palermo Convention — and
a number of others117 — and those conventions on transnational offences which do provide for an
obligation to investigate and prosecute118. In the Palermo Convention, the only obligations likely to
affect specific domestic procedures are those in Articles 16 to 18 concerning judicial co-operation
in criminal matters.
109. The Legislative Guide prepared by the United Nations Secretariat following the
adoption of the Convention confirms this analysis:
“In essence, States parties must establish a number of offences as crimes in their
domestic law, if these do not already exist. States with relevant legislation already in
114 MEG, para. 5.26.
115 MEG, para. 5.27.
116 Gerhard Werle, Florian Jessberger, Principles of International Criminal Law, 3rd ed., Oxford University
Press, 2014, p. 46; Neil [Boister], “The concept and nature of transnational criminal law”, in Neil [Boister] and
Robert J. Currie (eds.), Routledge Handbook of Transnational Criminal Law, London/New York, Routledge, 2015, p. 15.
117 That also applies, in particular, to the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 22 Dec. 1988.
118 For example, the International Convention for the Suppression of Terrorist Bombings of 15 Dec. 1997, Art. 7,
paras. 1 and 2; the International Convention for the Suppression of the Financing of Terrorism of 9 Dec. 1999, Art. 9,
paras. 1 and 2; the International Convention for the Suppression of Acts of Nuclear Terrorism of 13 Apr. 2005, Art. 10,
paras. 1 and 2. See Roger O’Keefe, International Criminal Law, Oxford University Press, 2015, p. 330.
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place must ensure that the existing provisions conform to the Convention requirements
and amend their laws, if necessary.”119
110. Equatorial Guinea flagrantly disregards the content of the obligations when it claims
that French law applies the Palermo Convention120, and that any implementation of domestic law
therefore falls within the scope of the Convention. Each of the two stages in its reasoning is
erroneous.
111. First, the Memorial explains that “in the absence of an obligation to do otherwise, States
remain free to choose how they give effect to their obligations”121. That is true, but, since the
obligation consists of establishing criminal offences and bases of jurisdiction, the choice of the
means relates to how the general rules of domestic criminal law and criminal procedure are adapted
to the requirements of the Convention. That free choice reflects the fact that the Convention has no
direct effect and seeks merely to harmonize the legal systems of the States parties. However,
Equatorial Guinea does not claim that French law is not in harmony with the Convention.
112. Second, while it is true that the conventional obligations require domestic laws to be
brought into conformity with the Convention, they do not require criminal proceedings to be
initiated in a particular case. The implementation of domestic legislation still falls under the
criminal sovereignty of the States parties to the Convention. It makes this crystal clear, since
Article 11, paragraph 6, expressly states: “Nothing contained in this Convention shall affect the
principle . . . that such offences shall be prosecuted and punished in accordance with [the] law [of
that State party].”
113. By virtue of this principle, the French judicial authorities commenced proceedings
against Mr. Teodoro Nguema Obiang Mangue on the basis of French law122. That they did so
regarding money laundering, an offence which the States parties to the Convention are also obliged
to establish as a criminal offence in their domestic law, does not place those proceedings within the
scope of the conventional obligations.
B. An examination of the provisions of the Convention invoked by Equatorial Guinea
114. The provisions of the Palermo Convention correspond perfectly to its object and
purpose, which is to establish a “legal framework” to combat transnational organized crime, and
not to govern the conduct of proceedings in specific cases. Notwithstanding the overall scheme of
the conventional obligations, in its Memorial Equatorial Guinea cites several articles of the
Convention, in addition to Article 4, in an attempt to justify the Court’s jurisdiction. However, it
rarely enters into detail, since a simple perusal of the provisions invoked reveals that they have no
connection with the case submitted to the Court. Consequently, the purpose of the following
observations is simply to provide a precise response to Equatorial Guinea’s Memorial. We begin by
examining the provisions invoked in respect of the proceedings against Mr. Teodoro Nguema
119 Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized
Crime and the Protocols Thereto, United Nations, New York, 2005, p. [17], para. 37.
120 MEG, para. 5.29.
121 MEG, para. 5.33.
122 See Paris Cour d’appel, National Financial Prosecutor’s Office, Final submissions seeking separation of the
complaints, and either their dismissal or their referral to the Tribunal correctionnel, 23 May 2016 (Ann. 30 MEG); Order
for partial dismissal and partial referral of proceedings to the Tribunal correctionnel, 5 Sep. 2016, regularized by an order
of 2 Dec. 2016, p. 35 (Ann. 7 MEG).
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Obiang Mangue (1) and continue with those invoked in respect of the building located at 42 avenue
Foch in Paris (2).
1. Provisions invoked in respect of the proceedings against Mr. Teodoro Nguema
Obiang Mangue
115. First, the Memorial mentions Article 3, interpreted in conjunction with Article 34,
paragraph 1123. Article 3, however, is devoted to the scope of the Convention, and contains no
obligation. While it refers to investigations and prosecution, it does so because of the conventional
provisions relating to judicial co-operation. Article 34, paragraph 1, contains no specific obligation
either, but recalls that the States must adopt the “necessary measures . . . to ensure the
implementation of [their] obligations under this Convention”. The conventional obligations said to
be at issue therefore remain to be identified.
116. Second, Equatorial Guinea mentions Article 6, entitled “Criminalization of the
laundering of proceeds of crime”124. Here, there is indeed an obligation incumbent on the States
parties. It is to adopt “such legislative and other measures as may be necessary to establish as
criminal offences, when committed intentionally”125 certain acts listed as constituting the
laundering of proceeds of crime. Each State party “shall seek to apply [this obligation] to the
widest range of predicate offences”126 and “shall furnish copies of its laws that give effect to this
article . . . to the Secretary-General of the United Nations”127. France complies with that obligation,
since money laundering is provided for and punishable under Articles 324-1 to 324-9 of the French
Penal Code. As Equatorial Guinea itself points out in its Memorial, French legislation already
included those offences before the Convention was adopted. And it does not claim that this
legislation is not in conformity with Article 6.
117. Third, Equatorial Guinea claims that the criminal proceedings initiated in France
constitute an implementation of Article 15128. Under that article, each State party “shall adopt such
measures as may be necessary to establish its jurisdiction over the offences established in
accordance [with the Convention]”129, depending on the place of the offence, its perpetrator or its
victim. Here too, the obligation incumbent on the States parties is to adopt the necessary rules in
their domestic law if they have not already done so to establish the jurisdiction of their courts
over those offences. Domestic French law complies with that provision130. Equatorial Guinea does
not contend that France has not performed its obligations in that regard. Moreover, the provision
123 MEG, para. 5.28.
124 MEG, para. 5.29.
125 Art. 6, para. 1, of the Convention.
126 Art. 6, para. 2 (a), of the Convention.
127 Art. 6, para. 2 (d), of the Convention.
128 MEG, para. 5.29.
129 Art. 15, para. 1.
130 Arts. 113-1 to 113-13 of the Penal Code; Art. 689 of the Code of Criminal Procedure. France has informed the
Secretary-General of the United Nations of the domestic legislative measures giving effect to Art. 15 of the Palermo
Convention (see https://www.unodc.org/cld/v3/sherloc/legdb/).
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relates to the establishment of bases of jurisdiction, not to the exercise of one of them in a given
case131. There is therefore no dispute regarding Article 15.
118. It should also be noted that Article 15 relates to adjudicative jurisdiction, and not to
immunities. As the Court has already had occasion to explain, immunity is not a question of
jurisdiction, but of the exercise of that jurisdiction132, since it is “procedural in nature”133; the
two questions must be carefully distinguished134. Article 15 therefore concerns neither the
immunities of State representatives nor those of the property of foreign States.
119. Fourth, the Memorial refers at slightly greater length to Article 11, paragraph 2, of the
Convention135, which provides that:
“Each State Party shall endeavour to ensure that any discretionary legal powers
under its domestic law relating to the prosecution of persons for offences covered by
this Convention are exercised to maximize the effectiveness of law enforcement
measures in respect of those offences and with due regard to the need to deter the
commission of such offences.”
120. Here, Equatorial Guinea’s reasoning is astonishing:
“By initiating criminal proceedings against the Vice-President of Equatorial
Guinea for criminal offences which he allegedly committed, the French courts have
sought to fulfil this obligation . . . This is a clear effort by France to exercise its
jurisdictional authority and apply its criminal law to the maximum extent possible in
order to deter money laundering. However, it cannot give effect to this obligation in
disregard of Article 4 of the Convention.”136
France is therefore not accused of violating this provision, but of applying it too well. That paradox
aside, the flawed analysis of the provision deserves particular attention.
121. The wording of Article 11, paragraph 2 — “shall endeavour to ensure”— indicates that
the provision is not legally binding, but a recommendation. That recommendation is of a general
nature and relates to the States parties’ penal policy. The aim of the negotiators was to ensure that
the prosecuting authorities would bear in mind the need to give effect to the law as efficiently as
possible — for example, without abusing mechanisms for granting concessions to the accused, be it
in exchange for information or as part of a plea bargain137. This is also evident from the context of
the provision, since under Article 11, paragraph 1, the States parties are required to “make the
131David McClean, Transnational Organized Crime — A Commentary on the UN Convention and its Protocols,
Oxford University Press, 2007, p. 167: “It is mandatory for States to ‘establish’ jurisdiction over the specified offences,
but that does not carry with it an obligation to exercise that jurisdiction in any particular case.”
132 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, p. 20, para. 46.
133 Ibid., p. 26, para. 60 (emphasis added).
134 Ibid., pp. 25-26, para. 59.
135 MEG, paras. 5.30-5.31.
136 MEG, para. 5.31.
137 David McClean, Transnational Organized Crime — A Commentary on the UN Convention and its Protocols,
Oxford University Press, 2007, p. 133.
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commission of an offence [covered by the Convention] liable to sanctions”138. As the Legislative
Guide adopted by the United Nations explains, the harmonization required by Article 11 seeks to
ensure that the sanctions clearly outweigh “the benefits of the crime”139. The whole of the article
therefore concerns the overall effectiveness of the law, and not measures relating to specific
cases140. This is confirmed, if confirmation were needed, by the final paragraph of Article 11. This
provision thus has no bearing on the present case, since Equatorial Guinea does not claim that the
French judicial authorities have pursued a penal policy that runs counter to it.
122. Immunity is a procedural aspect of the law applicable to a given case, which the judicial
authorities do not have discretion to accept or reject. The subject-matter of this dispute therefore
has no connection with Article 11, paragraph 2.
123. Fifth, Equatorial Guinea refers to Article 18 of the Palermo Convention, which
concerns mutual legal assistance141. It is true that the Palermo Convention was mentioned in the
request for international assistance sent by the French judges to the Equatorial Guinean authorities
on 14 November 2013142. However, Equatorial Guinea, which made a sovereign decision to comply
with that request, has never claimed to have a dispute with France in this regard143. Moreover, and
contrary to what is stated in the Memorial144, the simple fact that reference is made to the
Convention in a request for mutual legal assistance in no way modifies the legal basis of the
proceedings, which were initiated under French law alone.
2. Provisions invoked in respect of the building located at 42 avenue Foch in Paris
124. Equatorial Guinea’s Memorial, while not always explicit, mentions three articles of the
Convention in connection with the part of the dispute relating to the building at 42 avenue Foch in
Paris. The reference to Article 18, which is common to the immunities and the building, has been
examined above. Articles 12 and 14, for their part, get a particularly cursory mention145.
125. Article 12 imposes an obligation on the States parties to adopt “such measures as may
be necessary to enable confiscation of: (a) Proceeds of crime derived from offences covered by this
Convention [and property used to commit them]”. As with Article 6, that obligation is therefore
performed once the State party has adopted rules in its domestic law which enable the proceeds of
138 Art. 11, para. 1, of the Convention.
139 Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized
Crime and the Protocols Thereto, United Nations, New York, 2005, p. [130], para. 262. To that end, the prosecution and
sanctions must be “consistent with the harm [the perpetrators of the crimes] have caused and with the benefits they have
derived from their criminal activities” (ibid., p. [130], para. 261). Consequently, pursuant to Art. 11, “States parties
[must] give serious consideration to the gravity of the offences covered by the Convention when they decide on the
appropriate punishment and possibility of early release or parole” (ibid., p. [131], para. 264).
140 Ibid., [p. 133], para. 275: States “must make an effort to encourage the application of the law to the maximum
extent possible in order to deter the commission of the four main offences”.
141 MEG, paras. 5.32 and 5.33.
142 Paris Cour d’appel, National Financial Prosecutor’s Office, Final submissions seeking separation of the
complaints, and either their dismissal or their referral to the Tribunal correctionnel, 23 May 2016, p. 29 (MEG, Ann. 30).
143 AEG, para. 41. See also MEG, submissions, p. 181.
144 MEG, para. 5.32.
145 MEG, para. 5.32.
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crime to be confiscated. The French Penal Code includes such provisions146, and it is not alleged
that they do not comply with the Convention.
126. Article 14 concerns the disposal of confiscated proceeds of crime and property. Its first
paragraph provides that the State should dispose of them “in accordance with its domestic law and
administrative procedures”, thus recognizing States’ freedom of action in this area. The remaining
two paragraphs set out how States should co-operate for the purposes of returning or contributing
the value of such proceeds of crime or property to international bodies, or sharing it with other
States. None of this is at issue in the present dispute.
*
* *
127. In conclusion, it follows from the foregoing that the claims submitted to the Court
regarding the criminal proceedings initiated against Mr. Teodoro Nguema Obiang Mangue, and the
building located at 42 avenue Foch in Paris, in no way concern the application or interpretation of
any of the provisions of the Palermo Convention. Article 4 refers to principles intended to guide the
implementation of the conventional obligations, and there is no dispute between the Parties calling
into question any of the obligations under that Convention. Consequently, the Court has no
jurisdiction to entertain the dispute submitted by Equatorial Guinea on the basis of Article 35,
paragraph 2, of the Palermo Convention.
CHAPTER 3
THE COURT’S LACK OF JURISDICTION ON THE BASIS OF THE
VIENNA CONVENTION ON DIPLOMATIC RELATIONS
128. In the chapter of its Memorial devoted to “[t]he jurisdiction of the Court”, Equatorial
Guinea deals only very briefly with the question of whether, in this instance, the Vienna
Convention on Diplomatic Relations of 18 April 1961 enables the Court to entertain the
submissions put forward in the Application on the basis of that treaty. Apart from a few citations
recalling the preconditions for referral to the Court and a brief presentation of the position set out
by France during the hearings on the request for provisional measures, the relevant passage of the
Applicant’s argument occupies just one paragraph, which reads as follows:
“The dispute before the Court concerns the interpretation and application of
several provisions of the VCDR, including but not limited to Article 1 (i) and
Article 22. One of the fundamental aspects of the dispute is indeed to determine
whether the building located at 42 avenue Foch in Paris forms part of the premises of
Equatorial Guinea’s diplomatic mission in France, and as from what date. This raises a
number of factual and legal issues, which the Court is called upon to decide.
Equatorial Guinea and France have different views on these matters, which is why
there is no question that a dispute concerning the VCDR exists.”147
146 Arts. 131-21 and 324-7 of the Penal Code (see https://www.unodc.org/cld/v3/sherloc/legdb/).
147 MEG, p. 78, para. 5.46.
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129. Such deliberate brevity is surprising in several respects, primarily because Equatorial
Guinea had indicated during the exchanges on the request for the indication of provisional
measures, and in a bid to play down the importance already accorded by France to the question of
the Court’s jurisdiction, that the latter would subsequently be the subject of “detailed written
pleadings”148. Yet instead of producing a detailed argument, the Applicant confines itself here to
making bald, unsubstantiated assertions, which it presents as self-evident truths. For the reasons
given below, France considers that these cursory observations can, and must, be refuted. A mere
reference to “different views” evidently cannot suffice to accept that “there is no question that a
dispute concerning the VCDR exists”149. As the Court clearly recalled in the Judgment delivered in
the Oil Platforms case, it
“cannot limit itself to noting that one of the Parties maintains that such a dispute
exists, and the other denies it. It must ascertain whether the violations of the
Treaty . . . pleaded . . . do or do not fall within the provisions of the Treaty and
whether, as a consequence, the dispute is one which the Court has jurisdiction ratione
materiae to entertain.”150
130. Exactly the same is true in the present instance. Rather than upholding the Applicant’s
distinctly succinct reasoning151, the Court prudently reserved its position on the matter during its
examination of the request for the indication of provisional measures. That stance was no doubt
dictated by the limits that such a claim traditionally places on the Court’s power to assess its own
jurisdiction. The Court thus recalled, as it does consistently in such circumstances, that at that stage
it needed only to satisfy itself of the existence, prima facie, of a basis of jurisdiction, and did not
need to “satisfy itself in a definitive manner that it ha[d] jurisdiction as regards the merits of the
case”152; consequently, the decision rendered on 7 December 2016 “in no way prejudges the
question”153 considered here.
131. Nonetheless, the language used by the Court to establish its jurisdiction — even prima
facie — on the basis of the Vienna Convention on Diplomatic Relations remains notably cautious.
The Court observes, for example, that “the rights apparently at issue may fall within the scope of
Article 22 of the Vienna Convention, which guarantees the inviolability of diplomatic premises”154,
before enjoining the Respondent to “take all measures at its disposal to ensure that the premises
presented as housing the diplomatic mission of Equatorial Guinea at 42 avenue Foch in Paris
enjoy treatment equivalent to that required by Article 22 of the Vienna Convention on Diplomatic
Relations, in order to ensure their inviolability”155. By choosing this form of words, the Court left
unresolved the questions raised in this instance by the possibility of applying the Vienna
Convention ratione materiae, particularly regarding the legal status of the building located at
148 CR 2016/16, 19 Oct. 2016, p. 10, para. 9 (Wood).
149 MEG, p. 78, para. 5.46.
150 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment,
I.C.J. Reports 1996, p. 810, para. 16.
151 According to the Applicant, there is a “dispute ‘arising out of the interpretation and application of the
[Vienna] Convention’ within the meaning of Article I of the Optional Protocol. As such, under Article II the Court has
jurisdiction if certain conditions are met. Those conditions are met, as we explained in the Application instituting
proceedings” (CR 2016/16, 19 Oct. 2016, p. 14, para. 20 (Wood)).
152 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, para. 31.
153 Ibid., para. 98.
154 Ibid., para. 67 (emphasis added).
155 Ibid., para. 99 (emphasis added).
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42 avenue Foch in Paris (16th arrondissement). These are precisely the questions underlying the
preliminary objection raised here.
132. Before examining them, and in the interests of the sound administration of justice, it
should be recalled that France does not dispute that the formal conditions for relying on the
Protocol are met in this instance156 and, more specifically, does not consider Articles II and III of
that instrument as obstacles to the Court’s jurisdiction. Indeed, in the context of the request for the
indication of provisional measures, France explained that respect for the principle of judicial
independence, and the fact that French legislation does not allow for criminal proceedings to be
stopped by means of a compromise agreement, meant that it was not in a position to pursue
Equatorial Guinea’s offer of conciliation and arbitration157.
133. Careful examination of the elements of law and fact put forward in Equatorial Guinea’s
Application and Memorial, however, shows that the Court does not have jurisdiction ratione
materiae to entertain Equatorial Guinea’s claims on the basis of the Vienna Convention and
Article I of its Optional Protocol, which reads as follows:
“Disputes arising out of the interpretation or application of the Convention shall
lie within the compulsory jurisdiction of the International Court of Justice and may
accordingly be brought before the Court by an application made by any party to the
dispute being a Party to the present Protocol.”
134. Thus, for the Court to have jurisdiction on the basis of that text, the dispute alleged by
the Applicant must actually fall under the provisions of the Vienna Convention. While the Court
has a degree of discretion to determine whether that is indeed so in the context of a case submitted
to it, it must clearly pay particular attention to the terms used by the Applicant to present the
dispute158.
135. According to the Applicant’s Memorial, which uses a slightly more precise form of
words than its Application159,
156 France ratified the Vienna Convention on Diplomatic Relations and the Optional Protocol on 31 Dec. 1970;
Equatorial Guinea acceded to the Convention on 30 Aug. 1976 and to the Protocol on 4 Nov. 2014.
157 See CR 2016/17, p. 18, para. 2 (Alabrune) and Immunities and Criminal Proceedings (Equatorial Guinea v.
France), Request for the indication of provisional measures, Order of 7 Dec. 2016, para. 62.
158 In its Judgment in the case concerning Fisheries Jurisdiction, the Court explains that it is for the Court itself,
“while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective
basis the dispute dividing the parties, by examining the position of both parties . . . The Court’s jurisprudence shows that
the Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute . . . The
Court will itself determine the real dispute that has been submitted to it (see Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, pp. 24-25). It will
base itself not only on the Application and final submissions, but on diplomatic exchanges, public statements and other
pertinent evidence (see Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 262-263)” (Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, pp. 448-449, paras. 30-31,
emphasis added).
159 See AEG, para. 2.
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“[t]he dispute between Equatorial Guinea and France regarding the building located at
42 avenue Foch in Paris concerns whether that building enjoys immunity, both as
premises of the diplomatic mission of Equatorial Guinea and as the property of that
State, under international law and the Vienna Convention on Diplomatic Relations”160.
136. In France’s opinion, however, that is not the subject of the “real dispute” brought before
the Court, despite Equatorial Guinea’s fluid and subjective presentations of it161. As regards
reliance on the Vienna Convention, the dispute thus does not concern the protection which, under
Article 22, the receiving State must grant to the premises of the sending State’s diplomatic mission,
in particular from search or attachment (I).
137. The dispute in fact relates to a separate question, which is preliminary to that of the
protection which it is alleged should be offered to the building at 42 avenue Foch: the question of
whether, at the time of the events of which Equatorial Guinea complains in its Application, that
building should — or should not — have been regarded as being used for the purposes of
Equatorial Guinea’s mission in France. As recalled above, in this and in other respects,
Equatorial Guinea’s Application is abusive, which is sufficient to establish that the Court lacks
jurisdiction to entertain it162. Moreover, it is important to note that, if a dispute does exist between
the Parties, it does not fall within the provisions of the Vienna Convention, which stipulates neither
the means nor the methods for identifying the diplomatic purpose of buildings (II).
138. Alternatively, and assuming — quod non — that the Court were to agree that its
jurisdiction was established on the basis of that instrument, it would only be able to address on that
basis breaches of the Convention that are specifically alleged in the Application. In that instance,
the Court’s jurisdiction would therefore be limited to examining the lawfulness of the attachment of
the building located at 42 avenue Foch in Paris in the light of the Vienna Convention (III).
I. The lack of a dispute between the Parties concerning the interpretation
or application of Article 22 of the Vienna Convention
139. In its written pleadings, Equatorial Guinea is distinctly vague about the provisions of
the Vienna Convention whose interpretation or application is said to lie at the root of the dispute
between itself and France. After briefly indicating that “applicable in the present dispute are the
provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961”163, the Application
instituting proceedings merely states that France “has breached its obligations owed to Equatorial
Guinea under the Vienna Convention . . ., in particular Article 22 thereof”164. The submissions
relating to the building at 42 avenue Foch, which are repeated verbatim in the Memorial165, are
barely more forthcoming, since they simply request the Court to adjudge and declare that France,
by attaching the building, “is in breach of its obligations under international law, notably the
Vienna Convention on Diplomatic Relations”166.
160 MEG, pp. 19-20, para. 2.9.
161 See paras. 13-41 above.
162 See paras. 58-88 above.
163 AEG, p. 10, para. 36.
164 Ibid., p. 11, para. 38 (emphasis added).
165 MEG, p. 182, para. (c) (i).
166 AEG, p. 13, para. 41 (c) (i).
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140. Even more surprisingly, Equatorial Guinea’s Memorial provides no further evidence of
the precise nature of the obligations under the Vienna Convention which France is alleged to have
breached in this instance. As we have already noted, the section about the Court’s jurisdiction
simply states that the dispute “concerns the interpretation and application of several provisions of
the VCDR, including but not limited to Article 1 (i) and Article 22”167. Equatorial Guinea does
subsequently mention Article 1 (i), but solely to point out that the inviolability of diplomatic
premises is not dependent on their being owned by the sending State168 — a point which France
does not dispute— and then, “[t]o recall”169, it quotes the definition contained in that provision.
However, as we shall demonstrate, in this instance Article 1 (i) is not capable of providing the legal
basis for a dispute between the Parties170.
141. As for the other provisions of the Convention to which Equatorial Guinea alludes, they
in fact prove to be ineffective for the purposes of determining the nature of the supposed dispute
between the Parties on the basis of the Convention. For example, Equatorial Guinea does not claim
that France has failed to perform its obligations under Article 21 of the Convention; it merely notes
that “[i]f inviolability were made dependent on the sending State’s ownership of the building, it
would deprive Article 21 of the Convention of its substance and considerably narrow the scope of
protection offered by this principle”171. France does not disagree: in the context of the questions
being examined here, it is not ownership of the building that matters, but rather, as we shall see, its
possible status as “premises of the mission”172.
142. Similarly, and even more obviously, Article 12 of the Convention plainly has no
bearing on the definition of the dispute between the Parties. As the Applicant explains in its
Memorial, “[t]his provision is irrelevant for the purposes of the present case, since Equatorial
Guinea has neither established, nor sought to establish, offices forming part of its mission ‘in
[other] localities’”173.
143. Consequently, only Article 22 of the Vienna Convention would appear, at least at first
sight, to be capable of providing a legal basis on which it would be possible to establish that in this
case a dispute exists concerning the interpretation or application of the Convention, which is likely
to be subject to the compulsory jurisdiction of the Court. Indeed, it is the only provision which
Equatorial Guinea mentioned in its request for provisional measures, in respect of the rights that it
was seeking to protect on the basis of the Convention174. It is also the only one which the Court
took into account in its Order of 7 December 2016, when it considered that “at [that] stage, the
existence between the Parties of a dispute capable of falling within the provisions of the Vienna
Convention and concerning the interpretation or application of Article 22 thereof” was sufficiently
established175.
167 MEG, p. 78, para. 5.46.
168 Ibid., p. 142, para. 8.32.
169 Ibid., p. 143, para. 8.34.
170 See paras. 160-169 below.
171 MEG, p. 143, para. 8.32.
172 See paras. 159-176 below.
173 MEG, p. 144, para. 8.36, on the “[a] contrario” interpretation that the Applicant seeks to put forward on the
basis of that provision.
174 See CR 2016/14, 17 Oct. [2016], p. 32, para. 9 (Kamto).
175 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 17, para. 68.
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144. However, although it sufficed to acknowledge, for the purposes of the request for
provisional measures, “that Equatorial Guinea has a plausible right to ensure that the premises
which it claims are used for the purposes of its mission are accorded the protections required by
Article 22 of the Vienna Convention”176, the Court noted that “the rights apparently at issue [might]
fall within the scope of Article 22 of the Vienna Convention, which guarantees the inviolability of
diplomatic premises, and that the acts alleged by the Applicant in respect of the building on avenue
Foch appear[ed] to be capable of contravening such rights”177. In so doing, it relied not only on
Equatorial Guinea’s assertion that the building at 42 avenue Foch had been assigned for diplomatic
use since 4 October 2011, but, above all, on the purely factual observation made by France “that,
from the summer of 2012, certain services of the Embassy of Equatorial Guinea appear[ed] to have
been transferred”178 to that address.
145. In other words, the possibility that, from the end of July 2012, the building concerned
might have accommodated certain of Equatorial Guinea’s diplomatic services was sufficient to
render plausible the rights for which Equatorial Guinea was seeking protection, on the basis of
Article 22 of the Convention, by requesting provisional measures. For the Court it was clearly not a
question of determining whether the searches and attachment of the building located at 42 avenue
Foch — all of which took place prior to the end of July 2012179— might have contravened the
rights invoked by the Applicant on the basis of Article 22, but rather, more simply, of preserving
those possible rights until the end of the proceedings initiated before it.
146. Such an approach is not at all unusual. As the Court itself recalled at the provisional
measures stage, it “is not called upon to determine definitively whether the right which Equatorial
Guinea wishes to see protected exists”180, a fortiori when the request for the indication of such
measures precedes the examination of the Court’s jurisdiction. At that point the allegations made
by each of the Parties are undeniably important. However, at the stage of establishing jurisdiction,
that provisional assessment of the apparent existence and plausibility of the rights at issue cannot
suffice. In the words of an arbitral tribunal constituted under the United Nations Convention on the
Law of the Sea, “in any . . . case invoking the compromissory clause of a treaty, the claims made,
to sustain jurisdiction, must reasonably relate to, or be capable of being evaluated in relation to, the
legal standards of the treaty in point, as determined by the court or tribunal whose jurisdiction is at
issue”181.
147. Following that logic, it is for the Court to determine whether Equatorial Guinea’s
claims are capable of falling within the provisions of Article 22 of the Vienna Convention. They
are certainly not in this case, since Equatorial Guinea has failed to demonstrate that the provision
concerned is applicable to its dispute with France.
176 Ibid., p. 19, para. 79.
177 Ibid., p. 17, para. 67.
178 Ibid., [p. 19, para. 79].
179 See paras. 20-29 [above].
180 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 19, para. 78. See also Questions relating to the Seizure and Detention of
Certain Documents and Data (Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014,
I.C.J. Reports 2014, p. 153, para. 26.
181 Southern Bluefin Tuna Case between Australia and Japan and between New Zealand and Japan, Award on
Jurisdiction and Admissibility, Decision of 4 Aug. 2000, RIAA, Vol. XXIII, pp. 38-39, para. 48.
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148. Article 22 of the Vienna Convention on Diplomatic Relations reads as follows:
“1. The premises of the mission shall be inviolable. The agents of the receiving
State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to
protect the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and
the means of transport of the mission shall be immune from search, requisition,
attachment or execution.”182
149. Article 22 thus sets out an inviolability régime protecting all buildings reserved for the
use of diplomatic missions; at the same time, this conventional legal régime, which derogates from
ordinary law, only applies to premises “used for the purposes of the mission”, as defined by
Article 1 (i) of the Convention.
150. France of course — and Equatorial Guinea does not claim otherwise — in no way
disputes the fact that diplomatic premises are entitled to inviolability, as established by Article 22.
To be even more specific, it fully accepts that the premises of the diplomatic mission of the
Republic of Equatorial Guinea in France, located at 29 boulevard de Courcelles in Paris
(8th arrondissement)183, must benefit unconditionally from the legal régime of Article 22. On the
other hand, it considers that the sending State’s rights under Article 22 can only be applied and
implemented if it has previously been established that the premises in question do indeed enjoy
diplomatic status. Article 22 contains no reference to any criteria or procedure for determining the
diplomatic purpose of a particular premises. It sets out the legal régime for diplomatic premises,
but includes no provision on how such status is acquired.
151. An examination of the practice to which Article 22 of the Convention has given rise
corroborates this interpretation, which, moreover, merely derives from the ordinary meaning of the
words and phrasing used to set out the obligations contained in that provision. To take just one
recent example, the High Court of Justice of England and Wales declined to extend the enjoyment
of the protective legal régime of Article 22 to a building in London owned by the Federal Republic
of Nigeria for the following reasons:
“45. Section 16 of the State Immunity Act preserves the immunities available to
a state under the Diplomatic Privileges Act 1964 and the Consular Relations Act 1968.
The defendants rely on section 2 of the former Act together with Article 22 of the
Vienna Convention on Diplomatic Relations of 1961.
46. Section 2 gives the force of law to certain articles of the Convention
including Article 22 which provides that ‘The premises of the mission shall be
inviolable’. However, despite the terms of the Acting High Commissioner’s
certificate, I do not accept that the Fleet Street property forms part of the premises of
the Nigerian High Commission. The Acting High Commissioner’s certificate has no
182 Emphasis added.
183 The address of the Embassy of Equatorial Guinea in France is listed in the “Annuaire des représentations
étrangères en France” (see http://www.diplomatie.gouv.fr/fr/le-ministere-et-son-reseau/annuaires-e…
ambassades-et-consulats-etrangers-en-france/, consulted on 17 Mar. 2017).
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special status for this purpose. A certificate from the Secretary of State would be
conclusive on the question whether the property comprises diplomatic or consular
premises (see section 1 (7) of the Diplomatic & Consular Premises Act 1987), but
there is no such certificate.”184
152. Thus, the issue of determining whether a building must be regarded as forming part of
the premises of the mission must undoubtedly be addressed prior to invoking Article 22 for its
benefit. As one of the most authoritative commentaries on the 1961 Vienna Convention indicates,
in its observations on Article 22,
“[a] question which cannot be clearly resolved from the text of the Convention or from
the travaux préparatoires is when the inviolability of mission premises begins and
ends. [. . .] In the Vienna Convention . . ., although there are elaborate provisions for
notification of persons entitled to privileges and immunities and for determining the
time when entitlement begins and ends, there are no analogous provisions for
premises.”185
153. Moreover, Equatorial Guinea seems to have the measure of the subject-matter and
limits of Article 22. The only reference to that provision in the “[l]egal bases of
Equatorial Guinea’s Application” reads as follows:
“[B]y the fact that its judicial authorities have seized a building used for the
purposes of the diplomatic mission of Equatorial Guinea in France, and by failing to
recognize the building as the premises of the diplomatic mission, the French Republic
has breached its obligations owed to Equatorial Guinea under the Vienna Convention
on Diplomatic Relations of 18 April 1961, in particular Article 22 thereof”186.
154. This line of argument would suggest that Article 22 was breached because of the failure
by the French authorities previously to recognize the diplomatic status of the building at 42 avenue
Foch. The wording of the submissions in the Application is equally illuminating on this point, since
Equatorial Guinea requests the Court
“to order the French Republic to recognize the status of the building located at
42 avenue Foch in Paris as the property of the Republic of Equatorial Guinea, and as
the premises of its diplomatic mission in Paris, and, accordingly, to ensure its
protection as required by international law”187.
184 L R Avionics Technologies Ltd v. The Federal Republic of Nigeria & Anor [2016] EWHC 1761 (Comm),
15 July 2016; available at: http://www.bailii.org/ew/cases/EWHC/Comm/2016/1761.htm.
185 E. Denza, Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, 4th ed., Oxford,
Oxford University Press, 2016, p. 145. J. Salmon agrees: “The Vienna Convention does not specify at which point the
premises acquire the status of ‘premises of the mission’. There is no provision for a notification procedure for premises
such as the one in Article 1[0] for people. Hence, for example, if a building or plot of land is purchased by a State to
establish an embassy (or consulate), but is not yet assigned to it, the courts do not recognize the State’s immunity from
jurisdiction in connection with that acquisition. However, as soon as the premises are assigned, their protection is
ensured” (J. Salmon, Manuel de droit diplomatique, Brussels, Bruylant, pp. 191-192, para. 287). [Translation by the
Registry.]
186 AEG, p. 11, para. 38 (emphasis added). “Memorandum No. 2 from the Republic of Equatorial Guinea to the
French Republic. The case of the so-called ‘ill-gotten gains’: the Equatorial Guinean chapter” already indicated in the
same vein: “[u]ltimately, because of the difference in positions between the two States regarding the legal status of the
building in question, the diplomatic mission of Equatorial Guinea in France is being deprived of the protection to which it
is entitled under Article 22 of the Vienna Convention on Diplomatic Relations and according to relevant practice”
(Ann. 12, p. 1[0], para. 51, AEG).
187 AEG, p. 13, para. 41 (c) (ii) (emphasis added).
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155. The fact that the building at 42 avenue Foch is not recognized as forming part of the
premises of the diplomatic mission of Equatorial Guinea thus appears, from the very wording it has
chosen, to be the trigger for the alleged breaches of Article 22. Yet that article imposes no such
obligation of recognition on the receiving State. Nevertheless, Article 22 is in fact the only specific
provision of the Convention in respect of which Equatorial Guinea has asserted that a dispute exists
between itself and France.
156. That last point alone would suffice to conclude that the Court has no jurisdiction to
entertain the dispute alleged by Equatorial Guinea on the basis of the Vienna Convention of
18 April 1961. That dispute does not relate to the régime for the inviolability of diplomatic
premises, but more directly and, as it were, upstream, to the legal status of a building which
Equatorial Guinea claims to own and use. Consequently, to paraphrase the words used by the Court
regarding the compromissory clause of another treaty, Equatorial Guinea “has not shown that there
[is] a question concerning the interpretation or application” of Article 22 of the Vienna
Convention — the only article specifically invoked in the Applicant’s Application and
Memorial — “on which itself and [France have] opposing views, or that it [has] a dispute with that
State in regard to this matter”188.
157. No doubt consideration should also be given to the possibility open to the Court, when
determining the subject of the “real dispute”189, to remedy any formal defects in Equatorial
Guinea’s Application. However, that power is of necessity restricted and must be exercised with a
narrow margin of appreciation, if only to preserve the rights and interests of the Defendant. As the
Court itself has explained,
“it is the Court’s duty to isolate the real issue in the case and to identify the object of
the claim. It has never been contested that the Court is entitled to interpret the
submissions of the parties, and in fact is bound to do so; this is one of the attributes of
its judicial functions. It is true that, when the claim is not properly formulated because
the submissions of the parties are inadequate, the Court has no power to ‘substitute
itself for them and formulate new submissions simply on the basis of arguments and
facts advanced’ (P.C.I.J., Series A, No. 7, p. 35).”190
158. In this instance, Equatorial Guinea has failed to produce a scrap of evidence in support
of its allegation that a dispute exists between itself and France concerning the interpretation or
application of Article 22. That failure is an insurmountable barrier to establishing the jurisdiction of
the Court on the basis of Article I of the Optional Protocol to the Vienna Convention. Moreover, in
this case it appears to be all the more fatal, since that Convention in fact contains no provision
under which the legal status of the building located at 42 avenue Foch could effectively be
determined. The relevant rules are governed exclusively by customary norms, which the Court has
no jurisdiction to apply in this case191.
188 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 43, para. 99.
189 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449,
para. 31.
190 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30; see also Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29.
191 See paras. 150-156 above.
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II. The impossibility of linking the dispute alleged by Equatorial Guinea
to the provisions of the Vienna Convention
159. The dispute between Equatorial Guinea and France does not concern the régime of
inviolability of diplomatic premises provided for by Article 22 of the Vienna Convention. The
Court’s jurisdiction could nonetheless be established on the basis of that instrument, if the
Applicant were able to “establish a reasonable connection between the Treaty and the claims
submitted to the Court”192. In this case, however, no such “reasonable connection” can be
established, since the Vienna Convention contains no rules specifying the modalities or procedure
for identifying the premises of a diplomatic mission and, therefore, for determining whether the
Article 22 régime applies to a given building. The Convention merely sets out the obligations
resulting from the principle of inviolability of premises whose diplomatic status is established, but
leaves States to identify buildings capable of enjoying protection under the Convention as they see
fit.
160. The only provision relating to the status of certain buildings as diplomatic premises is in
Article 1 of the Vienna Convention, which lists the definitions required “[f]or the purpose of the
present Convention”. It reads as follows: “(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”.
161. The object and meaning of that provision is clear from the Convention’s travaux
préparatoires. It did not appear in the draft articles on diplomatic intercourse and immunities
adopted by the International Law Commission in 1958193, which do not specify how the status of
diplomatic premises is acquired. The commentary on draft Article 20, on the “[i]nviolability of the
mission premises” simply indicates in this regard that:
“The expression ‘premises of the mission’ includes the buildings or parts of
buildings used for the purposes of the mission, whether they are owned by the sending
State or by a third party acting for its account, or are leased or rented. The premises
comprise, if they consist of a building, the surrounding land and other appurtenances,
including the garden and car park.”194
162. At the Vienna Conference, it was decided in the end to add “a somewhat shortened
version of this descriptive Commentary”195 to Article 1 of the Convention. And indeed, in both the
brief passage in the Commission’s commentary and the text of Article 1 (i) which it ultimately
inspired, the definition of “premises of the mission” does appear to be essentially descriptive,
above all because it does not stipulate the modalities or procedures for establishing that a building
does indeed fall into the category of diplomatic premises196. In other words, the question of
determining the legal status — or the diplomatic purpose — of a building for the purposes of the
192 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 427, para. 81.
193 The text of the draft articles is reproduced in the Yearbook of the International Law Commission (YILC), 1958,
Vol. II, doc. A/CN.4/SER.A/1958/Add.1, pp. [89] et seq., para. 53.
194 Ibid., p. 98 (commentary on Article 20, para. 2).
195 E. Denza, Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, 4th ed., Oxford,
Oxford University Press, 2016, p. 16.
196 “The one definition contained in Article 1 which is clearly objective in character is the definition of ‘the
premises of the mission’” (ibid.).
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Vienna Convention is not settled by the Convention and remains entirely outside its scope of
application197.
163. The diversity of State practice alone is testimony to the fact that the question of how a
particular building is recognized as having the legal status of “premises of the mission” is not
covered by the Convention. Moreover, Equatorial Guinea does not seem to deny that fact, since it
refers to the different ways in which States establish that a given building must be regarded as the
premises of a diplomatic mission198. The statement that “[m]ost countries do not impose any
particular formalities for the premises of a diplomatic mission to be recognized as inviolable”199 is
not in any way substantiated by the Applicant, which is nonetheless forced to concede that a “few
States”— it goes on to cite South Africa, Canada, Spain, the United States, India, the
United Kingdom, Switzerland and Sweden200— “require consent to the assignment of a building as
premises of a diplomatic mission”201.
164. The practice of these States can also be instructive in that it reveals how they
understand the extent of their international obligations, as regards giving their consent for a given
building to be used for a diplomatic purpose. Under the United Kingdom’s Diplomatic and
Consular Premises Act of 1987, for example, the acquisition of the status of premises of a
diplomatic mission is subject to the consent of the Secretary of State; the Act provides that “[t]he
Secretary of State shall only give or withdraw consent or withdraw acceptance if he is satisfied that
to do so is permissible under international law”202. Thus, while the official interpretation of the text
makes it clear that the notion of “premises of the mission” has the meaning given by Article 1 (i) of
the Vienna Convention203, the lawfulness of the consent is not required to be evaluated under that
Convention, but rather in the more general and non-specific context of “international law”. In a
similar vein, the United States Foreign Missions Act of 1982 lists as the first criterion for
“determination concerning the location of a chancery”, “[t]he international obligation of the
United States to facilitate the provision of adequate and secure facilities for foreign missions in the
Nation’s Capital”204. Thus, American legislation does not make the consent of the federal
authorities subject to compliance with any provisions in the Vienna Convention concerning
recognition of the legal status of “premises of the mission”, but solely and implicitly to those
obliging the receiving State to help the sending State acquire or obtain in some other way the
premises necessary for its mission (Article 21 of the Convention).
165. Furthermore, Equatorial Guinea does not contend that these national practices are
contrary to international law or, more specifically, to the Vienna Convention, even though it seems
to attach particular importance to the fact that “France has no legislation to which it could have
197 In this context it is significant that the notification obligations incumbent on the sending State under Article 10
of the Convention do not concern the premises of the mission; that silence indicates simply that the Convention does not
seek to regulate the acquisition of the legal status of “premises of the mission”.
198 See MEG, pp. 146-148, paras. 8.42-8.44.
199 Ibid., p. 148, para. 8.44.
200 Ibid., pp. 146-147, para. 8.42. This list is not exhaustive.
201 Ibid., p. 146, para. 8.41.
202 Diplomatic and Consular Premises Act, 15 May 1987, Section 1 (4); available at:
http://www.legislation.gov.uk/ukpga/1987/46.
203 See ibid., the “Interpretation of Part I” appended to the Act.
204 Foreign Missions Act (22 U.S.C. 4301-4316); available at: https://www.state.gov/documents/
organization/17842.pdf, § 4306 (d) (1).
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referred Equatorial Guinea”205, unlike the States that it mentions elsewhere206. Quite clearly, such a
circumstance is immaterial from the point of view of international law: the only important question
is in fact whether the practice concerned, regardless of the form it takes, is capable of constituting
an internationally wrongful act that is contrary to the Convention. As one author observes:
“In States where no specific domestic legal framework controls the acquisition
or disposal of mission premises, the definition of Article 1 (i) falls to be applied by
agreement between sending and receiving State. Generally speaking, a receiving State
is likely to be notified of mission premises for the purpose of ensuring that it carries
out its duties under Article 22 to protect those premises and ensure their inviolability.
Challenge to such notification will usually take place only where there are grounds to
suspect that the premises are not being used for purposes of the mission.”207
166. The Vienna Convention, through its Optional Protocol, constitutes the only possible
basis of jurisdiction in this case; it is also the only one invoked by Equatorial Guinea208. Since the
Convention contains no provision under which it is possible to assess the lawfulness of France’s
conduct, as disputed by the Applicant, the Court cannot exercise jurisdiction over the dispute
submitted by Equatorial Guinea.
167. Equatorial Guinea was reminded of France’s constant practice in the clearest of terms,
in reply to its assertion that “the mere designation of premises by any diplomatic mission is
sufficient for those premises to be afforded the benefit of such protection as is provided for by
Article 22 of the Vienna Convention of 18 April 1961”209. In the words of the Protocol Department
of the Ministry of Foreign and European Affairs:
“In accordance with constant practice in France, an Embassy which envisages
acquiring premises for its mission so notifies the Protocol Department beforehand and
undertakes to assign the said premises for the performance of its missions or as the
residence of its head of mission.
Official recognition of the status of ‘the premises of the mission’ within the
meaning of Article 1, paragraph (i), of the Vienna Convention on Diplomatic
Relations of 18 April 1961 is determined on the date of completion of the assignment
of the said premises to the services of the diplomatic mission, i.e., at the time that they
are effectively moved into. The criterion of actual assignment must accordingly be
satisfied.
205 MEG, p. 146, para. 8.41.
206 In fact, as Equatorial Guinea itself notes, it is “legislation and/or guides and published guidelines” (ibid.,
para. 8.42).
207 E. Denza, Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, 4th ed., Oxford,
Oxford University Press, 2016, p. 17. The author cites the even more explicit position adopted by J. Salmon, who
considers that: “[c]ontrary to the attempt made with regard to the size of missions (Article 11), the Vienna Convention
contains no provisions on conflicts of classification. While the mission is entitled to classify what it regards as premises
used for the purposes of the mission, that classification is merely provisional and unilateral, and the receiving State,
which may have the power to refuse the necessary authorizations, may dispute it. The conflict resolution model provided
for in Article 11 therefore seems to us to be equally apposite here. Agreement must be sought. In the absence of
agreement, it seems to us that here too the receiving State should have the last word” (J. Salmon, Manuel de droit
diplomatique, Brussels, Bruylant, p. 190, para. 286 (emphasis added). [Translation by the Registry.] See also Ph. Cahier,
Le droit diplomatique contemporain, 2nd ed., Geneva, Droz, 1964, p. 198.
208 See paras. 139-143 above.
209 Note Verbale No. 249/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 12 Mar. 2012 (No. 16 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures).
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It is only as from that date, notified by Note Verbale, that the premises enjoy the
benefit of appropriate protection as provided for by Article 22 of the Vienna
Convention on Diplomatic Relations of 18 April 1961.”210
168. It is striking that the section of the Applicant’s Memorial devoted to the “violation of
international law in respect of the building at 42 avenue Foch in Paris”211, which focuses entirely
on the “failure to respect the inviolability” of that building, provides no evidence in support of its
conclusion that “France’s refusal to recognize the diplomatic status of the building located at
42 avenue Foch in Paris is contrary to the provisions of the Vienna Convention on Diplomatic
Relations and general international law”212. That silence is no doubt due to the difficulty of
establishing such a fact under international law. As Chapter 1 of these preliminary objections
recalled, in this instance the claim that the premises were used for diplomatic purposes at the
material time is so implausible that it constitutes an abuse of rights and rules out the Court’s
jurisdiction in limine litis.
169. More fundamentally, that silence is explained above all by the fact that it is impossible
for Equatorial Guinea to identify a norm within the Convention which is effective against France’s
refusal to endorse its claims concerning the building at 42 avenue Foch213 and, hence, to establish
that there is a dispute between them about the interpretation or application of the Vienna
Convention, which would indeed fall under the Court’s jurisdiction ratione materiae. In this regard,
it appears to be particularly significant that in the submissions in its Application, which are
identical on this point in its Memorial, Equatorial Guinea mentions no international legal norm —
a fortiori the Vienna Convention — to substantiate its claim that France has an obligation to
“recognize the status of the building located at 42 avenue Foch in Paris . . . as the premises of its
diplomatic mission”214.
170. Furthermore, France’s practice, like that of the other States mentioned above, is fully
consistent with the principle of mutual consent and the pursuit of friendly relations which must
characterize diplomatic relations. It would therefore be paradoxical, to say the least, for the
receiving State to have no influence over the identification of the premises of a foreign diplomatic
mission on its territory, when that status triggers the application of an inviolability régime that
210 Note Verbale No. 1341 from the Ministry of Foreign Affairs of the French Republic to the Embassy of the
Republic of Equatorial Guinea, 28 Mar. 2012 (No. 18 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures). As the Protocol Department’s reply to the
questions of the investigating judges assigned to the “ill-gotten gains” case indicates,
“[f]or reference, a building with diplomatic status must be declared as such to the Protocol Department,
with a specific date of entry into the premises. Once it has been verified that the building is actually
assigned to a diplomatic mission, the Protocol Department informs the French Government that it has
been officially recognized in accordance with the relevant provisions of the Vienna Convention on
Diplomatic Relations of 18 April 1961 . . . The building at 42 avenue Foch has never been recognized by
the Protocol Department as forming part of the diplomatic mission of the Republic of Equatorial Guinea”
(Note Verbale No. 5009/PRO/PID, 11 Oct. 2011, Ann. 35 MEG).
211 MEG, pp. 129-159.
212 Ibid., p. 159, para. 8.71.
213 Equatorial Guinea only puts forward an “a contrario” interpretation of Article 12 of the Convention, to
conclude “that the opening of offices of a mission in the same locality, or the transfer of premises within the same
locality, is not subject to the consent of the receiving State” (MEG, p. 144, para. 8.36). The very wording of that
provision unquestionably precludes such a radical conclusion: Article 12 merely establishes a formal and rigorous
procedure — including the need to obtain “the prior express consent of the receiving State” (emphasis added) — for the
particular circumstances to which it refers; it cannot reasonably be inferred from it that the Convention also rules out any
form of intervention by the receiving State in the designation of the premises of the mission of the sending State.
214 AEG, p. 13, para. 41 (c) (ii), and MEG, p. 182, (c) (ii).
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derogates from ordinary law, and thus places an indeterminate limitation on its sovereign rights.
Yet that is what Equatorial Guinea contended in its correspondence with the Protocol Department
of the French Ministry of Foreign Affairs:
“[T]he régime for the protection of diplomatic premises is declaratory in nature,
such that the mere designation of premises by any diplomatic mission is sufficient for
those premises to be afforded the benefit of such protection as is provided for by
Article 22 of the Vienna Convention of 18 April 1961”215.
171. If, as Equatorial Guinea thus maintains, the receiving State’s role were confined to
endorsing the designation of premises by the sending State, the risks of abuse would inevitably
increase. France already indicated in the hearings on the request for provisional measures that the
consequences of such a scenario could reach the point of being “absurd”216. Equally worryingly, a
sending State could choose to declare that a property formed part of the premises of its mission —
even if it did not own it — in order to protect that property from the consequences of ongoing legal
proceedings in the receiving State, and have recourse to the International Court of Justice if the
latter refused to endorse that designation and allow an abuse of that kind. As the present
proceedings demonstrate, such a scenario would appear to be entirely possible in practice.
172. It is precisely to counter the effects of that kind of abusive practice217 that France has
consistently refused to lend either credence or substance to Equatorial Guinea’s claim that the
building at 42 avenue Foch should be regarded as forming part of the premises of its mission. At
this stage of examining the Court’s jurisdiction there is no need to return in detail to those claims,
which more often than not are driven by the developments in the judicial proceedings against
Mr. Teodoro Nguema Obiang Mangue in France218, in which a manifest abuse of the right to
diplomatic immunities is evident219. Moreover, it is worth recalling that the French authorities have
consistently refused to regard the building at 42 avenue Foch as forming part of the premises of
Equatorial Guinea’s diplomatic mission in France220.
173. With a certain candour Equatorial Guinea states that, regarding “the legal status of the
building located at 42 avenue Foch in Paris”, it “has been consistent since the start of the said
‘case’”221. The credibility of this version of events could be assessed on the basis of the present
proceedings alone222: having maintained in its Application instituting proceedings that the building
had been “used by the diplomatic mission of Equatorial Guinea”223 since 15 September 2011, the
Applicant stated — finally? — in reply to the question put by Judge Donoghue at the close of the
215 Note Verbale No. 249/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 12 Mar. 2012 (No. 16 of the additional documents communicated by France on 14 Oct.
2016 in connection with Equatorial Guinea’s request for provisional measures). This Note, like all the correspondence
sent from the Embassy of Equatorial Guinea to the Ministry between Sep. 2011 and Aug. 2012, gives the Embassy’s
address as 29 bd de Courcelles, Paris (8th arr.).
216 CR 2016/17, p. 12, para. 11 (Pellet).
217 See paras. 76-88 above.
218 See paras. 30-41 above for the timeline of the relevant events, and the presentation of those developments
made by the Agent of the French Republic during the hearings on the request for the indication of provisional measures
(CR 2016/15, 18 Oct. 2016, pp. 9-12, paras. 11-28, in particular paras. 14-24).
219 See paras. 76-88 above.
220 See fn. 29 above.
221 MEG, p. 57, para. 4.38.
222 See paras. 27-29 above.
223 AEG, p. 6, para. 20.
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hearings on provisional measures that “the building at 42 avenue Foch in Paris acquired diplomatic
status as of 4 October 2011”224, a position confirmed, albeit only imprecisely, in its Memorial of
3 January 2017:
“As Equatorial Guinea explained in its reply to the question put by
Judge Donoghue during the hearings on the request for provisional measures, the
building at 42 avenue Foch acquired diplomatic status as of 4 October 2011. The
diplomatic mission of Equatorial Guinea in France transferred all its offices there in
July 2012 [sic], after allowing due time to prepare for that move.”225
174. Further reading of the Memorial does not correct that oversight, since the precise date
of the move is never specified226. According to the Note Verbale to the Protocol Department of the
French Ministry of Foreign Affairs, the offices of the Embassy of Equatorial Guinea were located
as from 27 July 2012 — namely a few days after the attachment of the building — at 42 avenue
Foch, the address which the Embassy “is henceforth using for the performance of the functions of
its diplomatic mission in France”227.
175. France has consistently refused to confirm the successive versions of events relating to
the building at 42 avenue Foch, either before or after 27 July 2012, for reasons which it has already
fully explained to the Court228. In this regard, as the Court noted in its Order of 7 December 2016,
“the Parties do indeed appear to have differed, and still differ today, on the question of
the legal status of the building located at 42 avenue Foch in Paris. While Equatorial
Guinea has maintained at various times that the building houses the premises of its
diplomatic mission and must therefore enjoy the immunities afforded under Article 22
of the Vienna Convention, France has consistently refused to recognize that this is the
case, and claims that the property has never legally acquired the status of ‘premises of
the mission’. In the view of the Court, there is therefore every indication that, on the
date the Application was filed, a dispute existed between the Parties as to the legal
status of the building concerned.”229
176. However, that dispute does not concern the interpretation or application of the Vienna
Convention on Diplomatic Relations, the relevant provisions of which deal with the legal régime
for premises of a diplomatic mission, but leave outside the conventional scope the prior question of
how given buildings are recognized as enjoying that legal status230. In this instance, Equatorial
Guinea has not fulfilled its obligation to establish the “legal right in respect of the subject-matter of
224 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
p. 5. See also Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 18, para. 77.
225 MEG, p. 25, para. 2.30.
226 See in particular ibid., p. 58, para. 4.38, and p. 149, para. 8.48.
227 Note Verbale No. 501/12 from the Embassy of the Republic of Equatorial Guinea to the Ministry of Foreign
Affairs of the French Republic, 27 July 2012 (which gives the Embassy’s address as 29 bd de Courcelles) (No. 22 of the
additional documents communicated by France on 14 Oct. 2016 in connection with Equatorial Guinea’s request for
provisional measures).
228 See para. 172 above; see also the comments of the French Republic on the replies of Equatorial Guinea to the
questions put by Judge Bennouna and Judge Donoghue, 31 Oct. 2016, paras. 17-32.
229 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 17, para. 66.
230 See paras. 152-156 above.
74
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that which it claims”231. Consequently, the Court cannot exercise jurisdiction over the dispute
between Equatorial Guinea and France on the basis of the Vienna Convention on Diplomatic
Relations of 18 April 1961.
III. The limits of the Court’s jurisdiction on the basis of the Vienna Convention
on Diplomatic Relations
177. Even assuming, ex abundanti cautela, that the Court dismissed France’s preliminary
objection relating to the Vienna Convention on Diplomatic Relations, it would only be able to
entertain, on that basis, those aspects of the dispute based on precisely alleged violations of the
Convention. The only reference to that instrument in Equatorial Guinea’s submissions appears in
the section concerning the building located at 42 avenue Foch in Paris. There, Equatorial Guinea
requests the Court:
“(i) to adjudge and declare that, by attaching the building located at 42 avenue Foch
in Paris, the property of the Republic of Equatorial Guinea and used for the purposes
of that country’s diplomatic mission in France, the French Republic is in breach of its
obligations under international law, notably the Vienna Convention on Diplomatic
Relations and the United Nations Convention, as well as general international law”232.
178. According to the wording of the relevant part of the submissions, the only point that the
Court is called upon to decide, on the basis of the Vienna Convention, is whether the attachment of
the building on 19 July 2012 constituted a breach of the international obligations owed by France to
Equatorial Guinea under that treaty. This interpretation is further confirmed by reading the “legal
bases of . . . [the] Application”, where Equatorial Guinea lists the alleged breaches of France’s
international obligations: the legal proceedings initiated against Mr. Teodoro Nguema
Obiang Mangue233, the attachment of the building at 42 avenue Foch234 and, finally, the attachment
of property belonging to the Equatorial Guinean State235. However, the Vienna Convention is only
mentioned in connection with the second of the alleged breaches236.
179. During the provisional measures proceedings, however, Equatorial Guinea seemed to
want to extend the scope of its claims relating to the building at 42 avenue Foch, since it asked the
Court to indicate
“that France ensure that the building located at 42 avenue Foch in Paris is treated as
premises of Equatorial Guinea’s diplomatic mission in France and, in particular,
assure its inviolability, and that those premises, together with their furnishings and
231 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment,
I.C.J. Reports 1966, p. 39, para. 64.
232 AEG, p. 13, para. 41 (c) (i) and MEG, p. 182, (c) (i) (emphasis added). As has been pointed out, the second
submission relating to the building, which seeks to have the Court order France to recognize its status as the premises of
Equatorial Guinea’s diplomatic mission, makes no reference to the Vienna Convention (see para. 169 above).
233 AEG, p. 11, para. 37.
234 Ibid., para. 38.
235 Ibid., para. 39.
236 “[B]y the fact that its judicial authorities have seized a building used for the purposes of the diplomatic
mission of Equatorial Guinea in France, and by failing to recognize the building as the premises of the diplomatic
mission, the French Republic has breached its obligations owed to Equatorial Guinea under the Vienna Convention on
Diplomatic Relations of 18 April 1961, in particular Article 22 thereof” (ibid., para. 38, emphasis added).
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other property thereon, or previously thereon, are protected from any intrusion or
damage, any search, requisition, attachment or any other measure of constraint”237.
180. Despite returning only very briefly to that point during the hearings on the request for
the indication of provisional measures238, Equatorial Guinea maintained that submission at the
close of the hearings239. As one of France’s counsel stated,
“[i]n the view of the French Republic, the request relating to the furnishings and
property that were in the building prior to its attachment is unrelated to the subjectmatter
of the dispute. In paragraph (c) of the submissions in the Application, the
Applicant requests only the protection of the building located at 42 avenue Foch and
the premises of its diplomatic mission in Paris. It did not at any point request the
protection of furniture or other property — in particular the furniture or other property
present before 27 July 2012, the date on which the Applicant officially declared that it
was transferring its diplomatic premises to 42 avenue Foch.”240
181. That observation, made during the examination of the request for provisional measures,
applies a fortiori in considering the Court’s jurisdiction. If its jurisdiction could be established on
the basis of the Optional Protocol to the Vienna Convention, it would be strictly limited to an
examination of the lawfulness of the attachment of the building at 42 avenue Foch — the only
claim that appears in the submissions in the Application and Memorial241— to the exclusion of any
question relating to the movable property present in the building before its attachment on 19 July
2012.
182. The same applies to Equatorial Guinea’s other claims, which have no connection, not
even a superficial one, to the Vienna Convention on Diplomatic Relations. This is true of the
alleged failure to respect the immunities which Equatorial Guinea’s property is said to enjoy “under
general international law”242. The same conclusion must be drawn regarding the immunity of
Mr. Teodoro Nguema Obiang Mangue. Equatorial Guinea itself confirmed during the hearings on
the request for provisional measures that it was not seeking to extend the enjoyment of diplomatic
immunities to Mr. Nguema Obiang Mangue243, a fact which the Court explicitly noted in its Order:
“However, at the hearings, Equatorial Guinea relied only upon Article 35 in
respect of its claim regarding the immunity of Mr. Teodoro Nguema Obiang Mangue.
The Court will therefore proceed on the basis that the Optional Protocol to the Vienna
Convention is invoked by Equatorial Guinea only in relation to the claim regarding the
alleged inviolability of the premises at 42 avenue Foch.”244
237 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 4, para. 9 (emphasis added).
238 See CR 2016/14, 17 Oct. 2016, p. 30, para. 3 (Kamto). See para. 53 above.
239 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 5, para. 17.
240 CR 2016/15, 18 Oct. 2016, pp. 40-41, para. 34 (Ascensio). See also Immunities and Criminal Proceedings
(Equatorial Guinea v. France), Request for the indication of provisional measures, Order of 7 Dec. 2016, p. 18, para. 76.
241 See paras. 177-178 above.
242 AEG, p. 11, para. 39.
243 CR 2016/16, 19 Oct. 2016, p. 10, para. 10 (Wood).
244 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the indication of
provisional measures, Order of 7 Dec. 2016, p. 8, para. 32.
77
78
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183. It is within the strict limits specified above that the Court could examine Equatorial
Guinea’s claims, if it decided that the Optional Protocol to the Vienna Convention on Diplomatic
Relations gave it jurisdiction to consider the Application on the merits, quod non.
*
* *
184. In light of the foregoing, it would appear:
that there is no dispute, within the meaning of Article I of the Optional Protocol to the Vienna
Convention on Diplomatic Relations, between Equatorial Guinea and France concerning the
interpretation or application of the inviolability régime for diplomatic premises set out in
Article 22 of the Convention;
that the real dispute between the Parties concerns a question which arises before Article 22 of
the Convention can be invoked, regarding recognition of the building located at
42 avenue Foch in Paris as premises of Equatorial Guinea’s diplomatic mission in France;
that the provisions of the Vienna Convention on Diplomatic Relations do not cover that
question;
that, consequently, the Court has no jurisdiction to entertain the claims made by Equatorial
Guinea on the basis of that Convention.
185. Very much in the alternative, and assuming, quod non, that the Court’s jurisdiction
could be established on the basis of the Optional Protocol to the Vienna Convention, such
jurisdiction could only extend ratione materiae to the one question of whether the attachment of
the building located at 42 avenue Foch in Paris is lawful under the Convention.
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SUBMISSIONS
186. For the reasons set out in these preliminary objections, and for any such others as might
be put forward in the subsequent proceedings or raised proprio motu, the French Republic
respectfully requests the International Court of Justice to decide that it lacks jurisdiction to rule on
the Application filed by the Republic of Equatorial Guinea on 13 June 2016.
Paris, 30 March 2017
(Signed) Mr. François ALABRUNE,
Agent of the French Republic.
___________
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LIST OF ANNEXES
Annex 1: Complaint with civil-party application filed by Transparency International
France and Mr. Grégory Ngbwa Mintsa with the Paris Tribunal de grande
instance, 2 December 2008
Annex 2: Note Verbale No. 158/865 from the Ministry of Foreign Affairs of the
French Republic to the Embassy of the Republic of Equatorial Guinea,
2 March 2017
Annex 3: Note Verbale No. 628/12 from the Embassy of the Republic of Equatorial
Guinea to the Ministry of Foreign Affairs of the French Republic,
19 September 2012
Annex 4: Record of failure to appear before the Paris Tribunal de grande instance,
1 March 2012
Annex 5: Summons to attend a first appearance, 22 May 2012
Annex 6: Record of failure to appear before the Paris Tribunal de grande instance,
11 July 2012
Annex 7: Letter No. 140831 from the Registrar of the Court to the Minister for
Foreign Affairs of the French Republic, 25 September 2012
Annex 8: Article published in Jeune Afrique, 13 March 2015, “France Guinée
Equatoriale : porte de sortie en vue pour Teodorin ?” (Available at
http://www.jeuneafrique.com/226650/politique/france-guin-e-quatorialepo…-
de-sortie-en-vue-pour-teodor-n/.)
Annex 9: Press release of the spokesperson for the Government of the Republic of
Equatorial Guinea, 7 December 2016, Malabo
Annex 10: Press release of the Representation of Equatorial Guinea in The Hague,
8 December 201[6]
Annex 11: Press release of the Equatorial Guinea Press and Information Office,
9 December 2016
Annex 12: Letter from the President of Equatorial Guinea to the French President,
19 January 2017
Annex 13: Letter from the President of the French Republic to the President of the
Republic of Equatorial Guinea, 16 February 2017
___________
83
ANNEX 1
Complaint with civil-party application filed by Transparency International
France and Mr. Grégory Ngbwa Mintsa with the Paris
Tribunal de grande instance, 2 December 2008
Complaint with civil-party application filed by Transparency International
France and Mr. Grégory Ngbwa Mintsa with the Paris
Tribunal de grande instance, 2 December 2008
COMPLAINT WITH CIVIL-PARTY APPLICATION
(1) Transparency International France, an association governed by the Law of 1 July
1901, with its registered office located at 2 bis rue de Villiers, 92300 Levallois-Perret, acting
through its President, Mr. Daniel LEBEGUE;
(2) Grégory Ngbwa Mintsa, residing at BP 2415 Libreville, Gabon, a Gabonese national.
Counsel: Mr. William BOURDON
Avocat à la Cour
156 rue de Rivoli, 75001 Paris
Tel: 01 42 60 32 60
Fax: 01 42 60 19 43
Courthouse box No. R 143
Whose offices are chosen as the address for service.
HAVE THE HONOUR OF SETTING FORTH THE FOLLOWING FACTS
I. Factual background
In an ordinary complaint lodged with the Paris Public Prosecutor’s Office in March 2007, the
associations Sherpa, Survie and Fédération des congolais de la diaspora set forth the following:
“(1) Over many years, various observers have gathered a certain amount of
information showing that leaders of African States or certain members of their
families had, during or after their terms of office, acquired or procured the acquisition
of immovable property on French territory.
It is also clear that, at about the same time, some of those African leaders
acquired movable assets, that is, they had bank holdings in France, at French banks
and/or foreign banks with operations in France.
(2) It is also certain and indisputable that, in recent years, in the wake of regime
changes, various African States have not hesitated to issue international letters
rogatory or, more generally, to request the assistance of the international community
in repatriating to the treasuries of the States concerned, sometimes with success, the
bank holdings misappropriated by those African leaders who have been removed from
office or lost elections, or who are deceased.
One could cite, inter alia, and simply as an example, the measures taken by the
Nigerian Government with regard to the considerable bank holdings misappropriated
by former President Sani Abacha.
- 2 -
These judicial measures not only targeted misappropriated bank holdings, they
also aimed to identify any immovable property acquired by the African leaders in
question.
It is true that these measures have not always been successful, since the real or
apparent owners of the immovable assets took great care to take certain precautions in
an attempt to conceal the actual ownership of the property and the financial
arrangements.
Nevertheless, following their various investigations and by collating
information gathered by different observers, the undersigned associations have in
recent years been able to prove, or at least to establish with a very high degree of
probability, that African leaders who are still in office and certain members of their
families own immovable property of sometimes considerable value on French
territory, and in Paris in particular.
They have also been able to acquire such proof with regard to immovable
property previously owned by ousted or deceased leaders, the ownership of which was
automatically passed on to their beneficiaries.
(3) Regardless of these leaders’ merits and capabilities, no one can seriously
believe that the immovable property in question, which in some cases is currently
valued at several million euros, could have been acquired solely out of their
remuneration.
This observation holds especially true for the family members of these African
leaders, when they appear to own a number of properties, since in many instances they
have no occupation or their occupation is unknown.
With regard to certain offences, such as money laundering, there is a
presumption under the law that the offence has been committed if a person cannot
provide proof of resources commensurate with his or her lifestyle (see for example
Cass. crim., 30 October 2002, No. 01-83.852).
In parallel, and with regard to the misuse of corporate assets, it has been
recognized that corporate funds withdrawn by a chief executive are necessarily
withdrawn in his own personal interest if there is nothing to show that the funds have
been used in the sole interest of the company (see, for example, Cass. crim.,
11 January 1996, No. 95-81.776).
Such reasoning may be applied, by analogy, to a Head of State, with regard to
the offences of misappropriation of public funds or handling misappropriated public
funds.
It is recalled that the offence of misappropriation of public funds is provided for
and punishable under Article 432-15 of the Penal Code, which states that:
‘The destruction, misappropriation or purloining of a document or
security, of private or public funds, papers, documents or securities
representing such funds, or of any other object entrusted to him, by
reason of his functions or his mission, committed by a person holding
public authority or discharging a public service mission, a public
accountant, a public depositary or any of his subordinates, is punishable
by ten years imprisonment and a fine of €150,000’.
- 3 -
Handling misappropriated public funds, for its part, is punishable under the
combination of Article 432-15 and Article 321-1 of the same Code, which provides:
‘Handling is the act of concealing, possessing or transferring
something, or acting as an intermediary in its transfer, with the
knowledge that it was obtained through a felony or misdemeanour.
Handling is also the act of knowingly benefiting in any manner
from the product of a felony or misdemeanour’.
Attached to this complaint, as required, is the most recent relevant jurisprudence
(document 1).
It is acknowledged, however, that in certain cases some of the Heads of State in
question may have received, non-transparently of course, rather extravagant
remuneration.
Even though it is indisputable that the French courts cannot pass judgment on
the remuneration of these African leaders, it must also be borne in mind for each of
the leaders and their families, whose situations will be examined below — that these
French immovable assets were acquired at about the same time as immovable assets
were acquired locally or in other countries, which, as will be shown, were sometimes
quite considerable in terms of both volume and value.
Finally, and at this point, it is to be noted that there are strong grounds to
believe that some of these African leaders, whose situations will be examined one by
one, are or were the instigators of misappropriations of large amounts of public funds.
These suspicions are not simply the fruit of activist agitation, but are rather, as
regards some of the leaders, corroborated by well-documented reports from, inter alia,
international financial institutions or even creditors of the States in question.
(4) For this reason, we draw the Public Prosecutor’s attention more specifically
to the following facts:
(4.1) As regards Mr. Omar BONGO or members of his family:
General observations
There is a large body of documentation concerning the misappropriation of
public funds committed by the BONGO clan.
In particular, we know that an attempt to block Mr. Omar BONGO’s accounts
was made by investigating judge Paul Perraudin in Switzerland on 11 May 1998. An
account opened in the name of one of President Bongo’s advisers, Samuel
Dossou-Aworet, was attached at the Canadian Imperial Bank of Commerce in Geneva.
The Head of State of Gabon declared that he was the actual beneficiary of the account
at issue, which made it possible to claim presidential immunity in order to stop the
investigating judge’s investigation (see documents listed below):
‘Les comptes d’Omar Bongo’, article in the newspaper Sud-Ouest,
28 August 1998 (document 2);
‘Pas de comptes en Suisse . . .’ La Lettre du Continent, 15 February 2001;
- 4 -
articles in Le Monde, 6 August and 2 April 1997 (documents 4 and 5);
article in L’Express, 21 January 1999 (document 6).
A United States Senate investigation published in June 2000 also shed light on
Mr. Omar Bongo’s secret accounts at City Bank.
Mr. Omar BONGO is suspected of having diverted US$130 million into bank
holdings in the United States between 1985 and 1997, not to mention City Bank’s
loans to the Bongo family, which total US$50 million.
City Bank is said to have explained ‘that the money came from a budget
allocation, with 8.5 per cent of the Gabonese budget — US$111 million — being
reserved for the President each year’.
The Senate investigators, notably the Democratic Senator from the state of
Michigan, Carl Levin, who sifted through the IMF’s reviews of the Gabonese budget
never found any trace of any ‘presidential allocation’ on that scale (see ‘Vieux comptes
gabonais’, La Lettre du Continent, 11 November 1999 document 7).
Mr. Omar BONGO was also seriously implicated in the Elf affair, and it was
only because of his immunity as Head of State that the investigating judges decided
not to interview him, at least as a witness.
Significantly, on 3 July 2002, the 11th Chamber of the Paris Cour d’appel
found that François-Xavier Verschave and his publisher, Les Arènes, were ‘not guilty
of the offence of affronting foreign Heads of State’, even though they had referred to
Omar Bongo as a ‘parrain régional [regional godfather]’ and to his régime as a
‘démocrature prédatrice [predatory democratorship]’.
The Court found that ‘the documents adduced and the testimonies collected
over the course of the proceedings . . . establish not only the importance and topicality
of the subjects raised, but also the thoroughness of the investigations conducted’.
The properties owned by Mr. Omar BONGO (or members of his family) in
France, and Paris in particular, include:
a townhouse at 18 rue Dosne in Paris (16th arr.): located on a private street
between 157 rue de la Pompe and 25 avenue Bugeaud (see ‘DDV et Sarko chez
Bongo à Paris’, La Lettre du Continent, 14 September 2006 document 8), this
townhouse purportedly belongs to his wife, Edith Bongo;
several apartments near avenue Foch in Paris, in the name of members of the
Bongo family:
Albert Bongo: 5 rue Laurent Pichat, 75016 Paris;
Arthur Ondimba Bongo: 53 boulevard Lannes, 75016 Paris;
Nesta Bongo Ping: 6 rue Marbeau, 75016 Paris;
Nesta Bongo Ting: 52 avenue Foch, 75016 Paris.
- 5 -
Strong suspicions seriously suggest that this property belongs to the Bongo
family or clan (as required, see extract from the Pages Blanches telephone directory
document 9).
It should be noted that Nesta Bongo Ping (the daughter or son born of the
marriage between one of Omar Bongo’s daughters and Jean Ping, the Gabonese
Minister for Foreign Affairs; Nesta Bongo Ping is moreover doing a master’s degree
in management at Paris Dauphine) owns two apartments appearing in his/her name in
the directory mentioned above.
In 1993, in his work entitled L’or des dictatures, Mr. Philippe Madelin listed
the Bongo clan’s various properties, including an apartment on avenue Foch and a
property in Nice.
Ten years later, in March 2005, La Lettre du Continent revealed once again the
existence of apartments on avenue Foch (€8 million for 1,000 m2) belonging to
Omar Bongo’s extended family (see ‘Appartements gabonais à vendre avenue Foch’,
La Lettre du Continent, 24 March 2005 document 10).
(4.2) As regards Mr. Denis SASSOU NGUESSO and his family:
General observations
Mr. Denis SASSOU NGUESSO is the current President of the Republic of
Congo.
Like Mr. Omar BONGO, he has been seriously implicated, by senior World
Bank officials among others, in the misappropriation of public funds.
Paul Wolfowitz, the former President of the World Bank, purportedly lambasted
the Congolese President’s staggering hotel bills.
Indeed, in connection with the ceremony for the 60th anniversary of the
United Nations, Denis Sassou Nguesso allegedly ran up over €140,000 in hotel bills
for a five-minute speech on poverty.
The former President of the World Bank purportedly told a journalist from The
New York Times: ‘It’s an injustice to the developing countries and their people when
we hide problems’.
The World Bank has long been reluctant to pursue negotiations to restructure
Congo’s national debt, owing to the fraudulent practices of its President.
More specifically, Denis Sassou Nguesso is suspected of having
misappropriated a substantial portion of oil rents for his own benefit or that of his
family and clan. These misappropriations purportedly began during his first term in
power, from 1979 to 1992, by negotiating below-market sales of oil in exchange for
payments to him. ‘The World Bank pointed out in 1990 and 1991 that returns on oil
exploitation [in the Congo] were among the world’s lowest’ (see the interview of
Martial Cozette, conducted by the parliamentary fact-finding mission chaired by
Marie-Hélène Aubert, ‘Le rôle des compagnies pétrolières dans la politique
internationale et son impact social et environnemental’, National Assembly report
No. 1859, 1999, p. 228).
- 6 -
With regard to the Congo, the former CEO of Elf, Loïk Le Floch-Prigent,
mentioned ‘phantom oil cargoes [that] are kept off the official books and divvied up
among men in the shadows’ (cited in Nicolas Lambert, Elf, la pompe d’Afrique:
Lecture d’un procès, Tribord, 2005, p. 82).
Mr. Le Floch-Prigent knows what he is talking about, considering that Elf,
followed by Total, supplies the Congolese State with 70 per cent of its oil revenue.
To date, Denis Sassou-Nguesso’s fortune is estimated at over a billion dollars
(see Mr. Xavier Harel’s work ‘Afrique : le pillage à huis clos’, pp. 37-45
document 11).
A 2001 report by the International Monetary Fund (IMF) condemned the
channelling of Congolese public funds into private accounts other than those of the
Treasury. According to the IMF, there is no trace of US$248 million from the
extraction of crude oil between 1999 and 2002 in Congo’s accounting.
In the 2003 budget, of US$800 million in oil rents, only US$650 million was
accounted for (see Le Monde, 25 March 2004 document 12).
According to the observation of a vulture fund, FG Hemisphere, the Congolese
authorities ‘forgot’ to record nearly a billion dollars between 2003 and 2005 (see work
by Mr. Xavier Harel cited above, p. 152).
The Congolese President and his clan also took advantage of additional
benefits — guaranteed loans and pre-financing — as well as various commissions on
oil sales and the provision pour investissements diversifiés (PID) [provision for
diversified investments], a veritable slush fund, which was not accounted for between
1997 and 2002.
In 2005, legal action taken by ‘vulture funds’, which had enabled part of the
Congolese debt to be purchased at a discount, brought to light a system of shell
companies controlled by men close to President Denis Sassou-Nguesso (see article
‘Les millions envolés du Congo’ in La Tribune, 13 December 2005, and ‘Les fonds
vautours multiplient les attaques contre les pays pauvres’ in Les Échos, 14 March
2007).
According to British and American court judgments, these companies
channelled a portion of oil proceeds into bank accounts in tax havens (see the
judgment of the Commercial Court, Royal Courts of Justice, London,
28 November 2005, and the April 2006 decision of a United States federal judge
admitting a complaint filed in May 2005 by Kensington International before the
United States District Court [for the Southern District] of New York documents 13
and 14).
On 28 November 2005, the Commercial Court at the Royal Courts of Justice in
London ordered the Congo to repay debts owed to Kensington International, a vulture
fund based in the tax haven of the Cayman Islands.
It was discovered that at the heart of the scheme was a small Bermuda-based
company, Sphynx Bermuda, which had only US$12,000 in share capital but carried
out about US$472 million worth of business! It would buy oil from the Société
Nationale des Pétroles du Congo (SNPC) [Congo’s State-owned oil company],
frequently at above-market prices, and sell it on the international market.
- 7 -
According to the Royal Courts of Justice in London, there is ‘no connection
between the cash passing through its bank accounts and the sums it should have
received for the oil it sold’ (document 15).
These two companies had the same chief executive: Denis Gokana, an adviser
to Denis Sassou-Nguesso. The President’s son was also involved in the companies.
In April 2006, a United States federal judge then declared admissible a
complaint filed by Kensington International against the French banking group
BNP Paribas and SNPC for money laundering.
BNP Paribas and SNPC had allegedly worked together to knowingly hide oil
proceeds from Congo’s creditors through a ‘complex and unusually structured’
pre-payment system.
Under the direction of Mr. Itoua, between 2001 and 2004 the Congo
State-owned oil company used a dizzying series of complex fictitious transactions and
smokescreen companies to plunder the country’s abundant oil resources. The
supposed intermediaries include one company registered in the British Virgin Islands
with ‘as its sole identifiable place of activity . . . a private residence in Monaco’.
The properties owned by Mr. Denis SASSOU NGUESSO in France, and Paris in
particular, include:
Villa Suzette, 45 avenue Maurice Berteaux, 78110 Le Vésinet: 700 m2 townhouse
estimated at between €5 million and €10 million. Sumptuous works were carried
out at a cost of over €800,000: ‘solid mahogany library, Aubusson tapestries,
gold-leaf taps and door handles, even for the basement with its six bedrooms for
domestic staff, cameras, bulletproof glass’, tile with ‘white Carrara marble’,
‘bathrooms with gold taps’;
19 avenue Rapp, 75007 Paris.
Members of his family also own immovable property in Paris:
Wilfrid Nguesso, the President’s nephew, is reported to own an apartment located
at 10 promenade Millénaire, 92400 Courbevoie (see Jean-François Julliard,
‘L’appartement d’un émule africain de Gaymard’, Le Canard Enchaîné,
16 March 2005: a 550 sq m luxury apartment (including a 100 sq m terrace)
estimated at between €2.5 million and €3 million);
other apartments in Courbevoie owned by the Nguesso family: Ines Nguesso,
10 promenade Millénaire, and Edna Ambendet Nguesso, 20 rue Clos Lucé (see
Pages Blanches);
Maurice Nguesso, the President’s brother and CEO of the oil company
LIKOUALA SA, are reported to own a property at 38 rue Poirier Fourrier in
Argenteuil (see Pages Blanches);
Jean François Ndengue, head of the Congolese police, has a property in Meaux.
He was implicated in the ‘Disappeared of the Beach’ case (see book by
Xavier Harel, chapter ‘Les disparus du Beach’).
The associations draw the Public Prosecutor’s attention to a serious effort made
by a group of Congolese citizens to itemize the ill-gotten gains that concern
- 8 -
Congo-Brazzaville. The list of implicated property and individuals can be found on
the following website:
http://congo-biensmalacquis.over-blog.com/ (copy of the website as of 21 March 2007
annexed hereto).
(4.3) On the property in France purportedly owned by other African
leaders
The undersigned associations wish to point out that they have not been able to
assemble sufficient factual elements to have the property discussed below included in
the scope of the forthcoming investigations.
They underscore, however, that it would be particularly inappropriate for those
who have acted with the least transparency also to receive the greatest rewards.
In other words, even though, as matters stand, the property discussed below is
not very precisely itemized and has sometimes only been alluded to in certain news
clippings, it is extremely likely that it exists and is effectively owned by the African
leaders in question.
In these circumstances, it falls to the Public Prosecutor to assess whether, as the
associations believe, despite the limited information concerning this property, it is
nonetheless justified, in light of France’s commitments (as recalled below), to include
the property in the scope of the forthcoming investigations.
(a) As regards Mr. Blaise COMPAORE and his family:
Mr. Blaise COMPAORE is the President of Burkina Faso.
Even though, in comparison with the previous two individuals, there is less
documentation indicating that he misappropriated public funds, the fact remains that
he owns (through his wife, Ms Chantal COMPAORE) an apartment located at 2 rue
Capitaine Olchanski in Paris (16th arr.).
The Public Prosecutor’s attention is also drawn to a few references which
demonstrate the misappropriation of funds, such as L’ère Compaoré : crimes,
politique et gestion du pouvoir, Vincent Ouattara (Klanba, December 2006). The
1-15 March 2007 edition of the bimonthly publication Afrique Éducation contains an
article entitled “Compaoré, chef de l’État ou chef de la mafia”, which discusses,
inter alia, his role alongside Charles TAYLOR, the former Head of State/dictator of
Liberia, who was prosecuted before an international criminal tribunal in The Hague
and whose assets were frozen in Europe under a regulation adopted by the European
Union in 2004.
(b) As regards Mr. Teodoro OBIANG and his family:
Mr. Teodoro OBIANG is the President of Equatorial Guinea.
According to the 12 April 2006 edition of Le Figaro (see article by
Stéphane Bern, ‘Drapeau rouge et billet vert’, 12 May 2006 document 16), he
acquired a townhouse located on avenue Foch. It is evident that
Mr. Teodoro OBIANG took pains not to be named as the apparent owner of the
property, but the verifications to be made in the forthcoming investigations will
undoubtedly establish that he is.
- 9 -
Mr. Teodoro OBIANG has been branded as one of the most corrupt Heads of
State in Africa (see the 15 July 2004 report by Senators Carl Levin and
Norm Coleman entitled “Money laundering and foreign corruption: enforcement and
effectiveness of the Patriot Act”, Permanent Subcommittee on Investigations
document 17. See also the Global Witness report cited above with regard to
Congo-Brazzaville).
According to the most recent ranking by Forbes magazine, his fortune is
estimated at over US$600 million.
(c) As regards Mr. Eduardo DOS SANTOS and his family:
Mr. Eduardo DOS SANTOS is the President of the Republic of Angola.
For years, he has been branded as one of the most corrupt Heads of State in the
world (see the Global Witness report ‘L’histoire accablante du pétrole en Angola’).
Mr. Eduardo Dos Santos has been identified as the owner, undoubtedly in the
same non-transparent circumstances as President Teodoro Obiang, of an absolutely
sumptuous villa in Cap d’Antibes (see La Lettre du Continent of 11 December
2002 document 18).
*
* *
In conclusion, the present complaint and the documents attached hereto
demonstrate the following:
(1) the existence in France, and in Paris in particular, of immovable assets of
considerable value which, regardless of the circumstances in which they were
acquired, could not have been financed solely through the remuneration paid to the
leaders of the countries concerned.
(2) Some of these same leaders have been identified as having perpetuated a culture of
bribery and corruption.
(3) As regards third parties who are the legal owners of the properties in question or
those who have benefited from them, that is, those who enjoy their use — be they
members of the families concerned or other individuals — there are very strong
grounds to believe that they have committed the offence of handling
misappropriated public funds, over a period not covered by prescription since the
offence is continuing.
France, through declarations made by its highest representatives, has in recent
years consistently voiced its intention to focus on combating any behaviour that is
likely to impoverish the peoples of Africa, in particular as a result of such
misappropriations of public funds.
Indeed, the consequences of this siphoning of considerable amounts of
money — needed to acquire such immovable assets — reflect the extent to which
public resources have been diminished in Africa.
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It should be recalled that:
at the G8 summit in Evian (in June 2003), France spearheaded efforts to seek the
repatriation of misappropriated funds to the countries concerned;
France was also the first G8 country to ratify the United Nations Convention
against Corruption, the so-called Merida Convention, which establishes the return
of misappropriated property and monies as a fundamental principle of
international law.
Furthermore, Mr. Prosecutor, before our very eyes, normative as well as
customary international law is being formed which, with each passing day, places
every State in the world under an increasingly stringent obligation to do whatever they
can to combat threats to the major economic and political balances, namely, financial
crime, regardless of who benefits from it or how it is carried out.
At the same time, and in response to this increasingly universal concern, there is
no question that the principles which, for many years, have protected incumbent
Heads of State, in respect of either their criminal or civil immunity, have been
gradually been eroding and crumbling.
This movement in treaty and customary international law has, moreover, led a
number of national courts to consider that an incumbent Head of State cannot claim
immunity of any kind with regard to such property (movable or real), if there are
strong grounds to believe that it was acquired through a criminal offence. This is
precisely the situation in the present case.
The undersigned associations recall that, in any event, the family members of
the African leaders concerned cannot claim any form of immunity.
What is more, it appears extremely likely that the offence of laundering
misappropriated public funds has also been committed, this offence having
accompanied, preceded or coincided with the financial flows needed to acquire the
real properties in question (or at least some of them).
As the Public Prosecutor is aware, the offence of laundering misappropriated
public funds applies to the perpetrator of the predicate offence.
Finally, the forthcoming investigations will ascertain whether certain third
parties, who offered their expertise or assistance in arranging the financial flows
needed to acquire property, have committed either the offence of complicity in the
misappropriation of public funds or the offence of laundering misappropriated public
funds.
While it is true that the prescription period for these related offences may have
expired, the undersigned associations are unsure of the dates on which some of the
properties mentioned above were acquired.
By the same token, the lack of transparency which surrounds these offences
could lead to it being considered, during the forthcoming investigations and as regards
these related offences, that the prescription period has not expired as far as the
perpetrators are concerned.
Moreover, the forthcoming investigations alone will ascertain (since the
prescription period has not expired for the offence of handling misappropriated public
- 11 -
funds) whether the prescription period for the predicate offence — misappropriation
of public funds (which was committed in connection with the acquisition of the real
property) — has expired with regard to the perpetrators.
Finally, this court must be aware that even if all or part of the predicate offence
were committed in a foreign country, according to jurisprudence and the law, the
French courts retain jurisdiction over handling offences.
In these circumstances, the undersigned complainants have the honour to file a
complaint before the Public Prosecutor, as matters stand, solely for handling
misappropriated public funds, an offence provided for and punishable under
Articles 432-15 and 321-1 of the Penal Code, and complicity, provided for under
Articles 121-6 and 121-7 of the Penal Code.”
It was decided on 12 November 2007 that no further action would be taken in
relation to this first complaint.
On 9 July 2008, a second complaint alleging the exact same facts was filed by
TRANSPARENCY INTERNATIONAL FRANCE, Béatrice TOUNGAMANI née
MIAKAKELA, Abdoul Aziz MAIGA and Grégory NGBWA MINTSA, and in early
September 2008 it was again decided that no further action would be taken.
A preliminary investigation (the full report of which is annexed hereto) was
initially launched by the Paris Public Prosecutor on 18 May 2007. The investigation
corroborated most of the facts alleged by the complainants. For this reason, we believe
the complete conclusions reached by the police bear repeating:
THE FACTS
On 18 June 2007, Mr. ALDEBERT, Deputy Prosecutor at the Paris Tribunal de
grande instance, Financial Division, addressed an investigation request (soit-transmis)
to the OCRGDF (serious financial crime squad). The request was in response to a
complaint filed with the Paris Public Prosecutor’s Office by three associations
(SHERPA, SURVIE and Fédération des Congolais de la Diaspora).
In their application, the associations filed a complaint against person(s)
unknown for handling misappropriated public funds. They mentioned considerable
assets acquired over a number of years by five African Heads of State and their
families. The funds used to acquire these assets in France were allegedly derived from
misappropriations carried out in their own countries. To support their allegations, the
associations provided substantial documentation, primarily news articles, mentioning
some of the immovable properties owned by the Heads of State in question.
The five countries cited in the complaint are Gabon, the Congo, Burkina Faso,
Equatorial Guinea and Angola. For reasons of convenience, it was decided to classify
the acts covered by our investigations into separate sub-files: sub-file A for Gabon,
sub-file B for the Congo, sub-file C for Burkina Faso, sub-file D for Equatorial Guinea
and sub-file E for Angola. An initial partial transmission was made on
27 September 2007.
THE INVESTIGATION
The mission entrusted to the OCRGDF’s criminal asset identification platform
(PIAC) involved the following tasks:
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identifying the immovable assets in Paris and on national territory belonging to
Omar BONGO, President of Gabon, Denis SASSOU NGUESSO, President of
the Congo, Blaise COMPAORE, President of Burkina Faso, Teodoro OBIANG,
President of Equatorial Guinea, and Eduardo DOS SANTOS, President of Angola;
ascertaining the circumstances in which the assets were acquired and identifying
the corresponding financial flows;
identifying the family members, third parties and official owners of the
immovable property thus identified who were likely to have benefited from it;
checking whether each of these persons enjoys diplomatic immunity.
Our initial investigations make it possible to pinpoint the identities of the
persons named in the file; this personal information is the only way to identify any
movable or immovable assets. The associations’ letter/complaint gives only a
surname, and sometimes a first name, but no date of birth; what is more, the
relationships between the persons are not always specified.
A list of natural persons is drawn up with regard to each country for use in the
investigations (see record No. 1 in each sub-file).
Our inquiries revealed a considerable vehicle collection, in particular in the
names of Wilfrid NGUESSO, the nephew of the President of the Congo, and
Teodoro NGUEMA, the son of the President of Equatorial Guinea.
Teodoro NGUEMA had, inter alia, purchased some fifteen vehicles in France for an
amount estimated at more than €5,700,000. For example, he ordered three BUGATTI
Veyron vehicles from the manufacturer in Alsace for a unit price of more than
€1 million (see record No. 132/2007/D/5 of 6 August 2007).
The financing of certain vehicles appeared unusual, to say the least: in 2006,
Pascaline BONGO, who is believed to be the daughter of the President of Gabon,
purchased a Mercedes vehicle paid for with three cheques drawn on the bank accounts
of Ms Joannie ARTIGA, Mr. François MEYER and the Treasury Office of Gabon in
France (see record No. 132/2007/A/4 of 20 July 2007). Similarly, some of the vehicles
purchased by Teodoro NGUEMA were paid for through transfers from SOMAGUI
FORESTAL (see records No. 132/2007/D/5 of 6 August 2007 and No. 132/2007/D/8
of 26 October 2007). Wilfrid NGUESSO paid the balance of an Aston Martin DB9
vehicle through a transfer made by MATSIP CONSULTING (see record
No. 132/2007/B/28 of 5 November 2007).
Substantial immovable assets were identified, in particular in the names of
individuals who were likely to be members of the families of Omar BONGO and
Denis SASSOU NGUESSO:
concerning the President of Gabon, a property in his name was discovered at
3 boulevard Frédéric Sterling in Nice (Alpes-Maritimes). The property is not
mentioned in the letter of 10 July 2007 from Mr. François MEYER to the Paris
Public Prosecutor, which provides a summary of Omar BONGO’s assets. The
property comprises two apartments (170 sq m and 100 sq m), three houses
(67 sq m, 215 sq m and 176 sq m) and a swimming pool (see record
No. 132/2007/A/8 of 17 September 2007).
concerning the members of the BONGO and SASSOU NGUESSO family, the tax
authorities found a société civile immobilière (non-commercial property
- 13 -
company), SCI De la Baume, whose shareholders include
Edith SASSOU NGUESSO, who is the daughter of Denis SASSOU NGUESSO
and wife of Omar BONGO. On 15 June 2007, the company purchased a
townhouse located at 4 rue de la Baume in the 8th arrondissement of Paris for
€18,875,000 (see record No. 132/2007/B/9 of 17 September 2007).
Lastly, it would appear that the majority of the immovable property owned by
the individuals identified is located in high-end neighbourhoods: the 16th and
7th arrondissements of Paris for Omar BONGO and his wife, the 16th arrondissement
of Paris and Neuilly-sur-Seine (Hauts-de-Seine) for Jeff BONGO, Le Vésinet
(Yvelines) for Denis SASSOU NGUESSO’s brother, Courbevoie (Hauts-de-Seine) for
Wilfrid NGUESSO, and the 16th arrondissement of Paris for Chantal CAMPAORE.
Numerous active bank accounts were identified in the names of natural persons
likely to be members of the families of the Heads of State concerned. A list for each
person is set out in a record. It states the account number, the date on which the
account was opened, the type of account, the exact address of the bank and branch
office, and the address of the account holder.
With regard to the possible immunities enjoyed by the persons appearing in the
file, the Protocol Department of the Ministry of Foreign Affairs sent a letter stating
that only incumbent Heads of State enjoy inviolability and absolute immunity from
criminal jurisdiction when abroad. Their family members may enjoy immunity if they
accompany the Head of State on a visit that is official (see record No. 132/2007/7 of
24 October 2007).
In accordance with the express instructions of the issuing judge, these
proceedings are transmitted as they stand.
II. Discussion
(1) Information gathered from the preliminary investigation
The investigations carried out by the investigation units revealed the following:
As regards Mr. Omar BONGO and his entourage:
immovable assets comprising thirty-nine (39) properties, of which seventeen (17) are in the
name of Mr. Omar Bongo, most of those properties being located in the 16th arrondissement of
Paris;
the identification of seventy (70) bank accounts (BNP, Société Générale, Crédit Lyonnais,
Barclays, etc.), of which eleven (11) are in the name of Mr. Omar Bongo;
a vehicle collection comprising at least nine (9) vehicles, estimated at a total of €1,493,443.
As regards Mr. Denis SASSOU NGUESSO and his entourage:
immovable assets comprising eighteen (18) properties;
the identification of a hundred and twelve 112 bank accounts (BNP, Crédit du Nord, Société
Générale, Crédit Lyonnais, Barclays, etc.);
a vehicle collection comprising at least one (1) vehicle, valued at €172,321.
- 14 -
As regards Mr. Teodoro OBIANG and his entourage:
immovable assets comprising at least one (1) property in the name of Mr. Teodoro Obiang
(born 5 June 1942);
the identification of one (1) bank account with Barclays in the name of Mr. Teodoro Nguema
Obiang (born 24 June 1969);
a vehicle collection comprising at least eight (8) vehicles owned by Mr. Teodoro Nguema
Obiang (born 24 June 1969), estimated at a total of €4,213,618.
*
* *
Considering the magnitude of the movable and immovable assets owned by
Mr. Omar BONGO and Mr. Denis SASSOU NGUESSO in France, it is difficult to believe that
they could have acquired such assets solely through their salaries and emoluments. True, they have
held on to power for many years. Even so, it is rather unlikely that they have saved up enough
money to amass assets such as these.
The preliminary investigation also confirmed the presence in France of considerable assets
held by various members of the leaders’ entourages (family and close associates). This revelation is
particularly surprising given that some of them do not hold public office.
The preliminary investigation revealed, moreover, the existence of assets of considerable
value — primarily luxury vehicles — benefitting the OBIANG family.
In any event, given the conditions in which some of the property targeted by the police was
financed, one could reasonably question the lawful provenance of the funds and the property thus
accumulated on French territory.
In particular, as regards the vehicle collection, it has to be recognized that the means by
which certain vehicles were financed are particularly “unusual”, to quote the term used in the
summary report of the police.
For example, a number of the vehicles purchased by Teodoro NGUEMA OBIANG were
paid for by transfers from SOMAGUI FORESTAL, a logging company based in Equatorial Guinea
and run by Teodoro NGUEMA OBIANG.
TRACFIN (the national anti-money laundering unit), which investigated the company,
considers that:
“in the light of all of these elements, both financial and environmental, it can be
considered that the operations set out above could reflect laundering of the proceeds of
the misappropriation of public funds by a person in a position of public authority,
through the acquisition of vehicles of considerable value” (p. 3 of the TRACFIN
memorandum).
This analysis is shared by the Immigration and Customs Enforcement Office in Miami,
United States, which is tasked with an investigation in the United States concerning
Mr. Teodoro Nguema Obiang, the son of the President of Equatorial Guinea: “The American
investigation into the activities of Mr. Teodoro Nguema Obiang and his associates identified a
- 15 -
number of suspicious transactions originating in or transiting through the French financial system”
(Point 2 of the request for assistance in the investigation of Teodoro Nguema Obiang and his
associates).
Similarly, the preliminary investigation shows that two vehicles purchased by Edith Bongo
and Pascaline Bongo, respectively, were paid for with cheques drawn on accounts opened in the
name of the Treasury of Gabon.
In conclusion, there is evidence of the existence on French territory of substantial movable
and immovable assets acquired in particularly dubious circumstances.
A judicial investigation must be opened to determine the provenance of the funds the abovementioned
persons used to acquire those assets. Furthermore, the full extent of the role played by
various intermediaries in carrying out these operations should also be brought to light.
(2) On the standing of Transparency International France
Transparency International France is a non-profit association that has been duly registered
with the relevant prefecture since 1995.
Its mission is to combat all forms of corruption, in accordance with the association’s purpose
as recalled below:
Article 2 Purpose
The mission of Transparency International (France) is to combat and prevent corruption at
the national and international levels, in relations between States, between States and natural or legal
persons, whether public or private, and between such persons themselves.
To that end, its purpose is to:
raise awareness of all forms of corruption in order to develop tools and processes to curb and
restrict their expansion and assess their impact;
develop and implement programmes of action and reviews in France and countries afflicted by
corruption;
educate and train professional technicians, administrators and decision-makers;
advise public authorities and natural and legal persons, whether public or private, on subjects
relating to the many facets of corruption;
provide support, particularly financial support, to Transparency International and back efforts
to pursue its purpose;
assemble documentation on all aspects of corruption;
engage the professional, social and political spheres in pursuing greater accountability in
economic and financial affairs;
take any action to prevent, deter or combat illegal practices or any form of corruption;
provide assistance and support to the victims of illegal practices after examining the cases
submitted to the association;
- 16 -
organize events intended to advance individual, collective and professional ethics, particularly
through the use of communications;
disseminate information which raises awareness about problems that lead to corruption in
public and business relations.
The Cour de cassation has for many years recognized the admissibility of civil-party
applications filed by associations in instances where the offence in question undermines the
interests that they have a legal or statutory duty to defend. The examples are legion:
regarding the admissibility of the application of the association “Aide à tout détresse”, which
provides care for destitute individuals who are unable to safeguard their own interests and
rights: Colmar Cour d’appel, 10 February 1977;
regarding the admissibility of the application of the association “Choisir” in rape proceedings,
on the grounds that the purpose of the association, according to its charter, is to ensure respect
for human beings and protect women who are in danger: Paris Cour d’assises, 15 December
1977;
regarding an anti-smoking association whose civil-party application relating to tobacco
advertising was found admissible: Cass. crim., 7 February 1984, Bull. crim. No. 41;
Cass. crim., 29 April 1986, Bull. crim. No. 146; Cass. crim., 29 June 1994, Bull. crim.,
No. 260;
regarding a French football federation, whose civil-party application was found admissible in
proceedings relating to the corruption of professional sportspersons in the
Valenciennes/Olympique de Marseilles scandal: Cass. crim., 4 February 1997, Bull. crim.
No. 45;
regarding the Union fédérale des consommateurs Que Choisir, whose civil-party application
based on Article L. 221-1 of the Consumer Code relating to the requirement of safe services
was found admissible in proceedings for homicide and involuntary injuries following the
collapse of a stand at Furiani stadium: Cass. crim., 24 June 1997, Bull. crim. No. 251;
regarding an association that defends beef industry interests in proceedings for the offence of
misleading advertising as to beef origin: Cass. crim., 26 October 1999, Bull. crim., No. 233.
More recently, the Cour de cassation had occasion to find admissible the civil-party
application of an unaccredited environmental protection association. The Chambre criminelle
found that the association had suffered direct and personal harm through the undermining of the
collective interests which, under its charter, it was intended to defend.
As mentioned above, the purpose of Transparency International France is to combat all
forms of corruption. The misappropriation of public funds and the handling thereof clearly fall
within the scope of corruption. This is moreover the approach taken in the United Nations
Convention against Corruption (Articles 17 and 24).
Therefore, if the legal interests defended by associations are not to be given unjustified
differential treatment, the possibility for Transparency International France to bring legal
proceedings must be recognized. Indeed, it would be quite surprising if an anti-corruption
association were denied something that has been granted to unaccredited environmental protection
associations or anti-smoking associations.
As a final note, Transparency International France satisfies the requirements of Article 5 of
the Law of 1 July 1901 (registration with the prefecture), which all associations must comply with
- 17 -
in order to have the right to take part in court proceedings, hence there are no impediments to the
admissibility of the association’s civil-party application: Cass. crim., 12 April 2005, Appeal
No. 0485.982.
It follows from the foregoing that Transparency International France has suffered direct and
personal harm as a result of the offences alleged in this complaint, with regard to which it is
entitled, under Article 2 of the Code of Criminal Procedure, to seek redress by filing a civil-party
application with the criminal courts.
(3) On the standing of Mr. Grégory Ngbwa Mintsa
First of all, considering the pressure placed on the complainants1, it is important to
emphasize that Mr. Grégory Ngbwa Mintsa has demonstrated great bravery in filing the present
civil-party application.
Mr. Grégory Ngbwa Mintsa is a Gabonese national. He has provided documentation proving
that, during a period corresponding to all or part of the period relating to the alleged facts, he paid
taxes to the Public Treasury of Gabon (see documents annexed hereto) and is filing the present
civil-party application in that capacity.
The complainant puts forward two grounds for his action.
The first ground: the harm suffered by the body politic of Gabon
Firstly, Mr. Grégory Ngbwa Mintsa seeks to file a civil-party application in the name and on
behalf of the State of Gabon with the aim of obtaining redress for the harm suffered by Gabon as a
result of the misconduct committed by Mr. Omar Bongo and the members of his entourage.
On the existence of the harm claimed by the complainants:
It has long been recognized that “Articles 2 and 3 of the Code of Criminal Procedure open
civil-party actions to anyone who has personally suffered material or moral harm resulting from
acts which are the subject of prosecution, without excluding public-law corporations” (Cass. crim.,
7 April 1999, Parc national des Écrins).
In the present case, the State of Gabon suffered harm as a result of the misconduct
committed by Mr. Omar Bongo and members of his entourage. This harm is both direct and
personal.
Direct because it is clear that the ownership on French territory by the leader of Gabon and
members of his entourage of property or funds derived from the misappropriation of public funds
harms the body politic as a whole.
From a material perspective, this harm consists of diminished government revenues;
from a moral perspective, harm is caused in so far as the facts at issue — since they were in
part carried out by persons performing public functions and in connection with the performance
of those functions — are liable to bring discredit upon the entire body politic: Cass. crim.,
10 March 2007, Bull. crim. No. 64; Cass. crim., 8 February 2006, Appeal No. 05-80.488;
1In this regard, it should be noted that two complainants (Ms Béatrice Tougamani and Mr. Abdoul Aziz Maiga)
decided not to file civil-party applications after receiving threats facts which are the subject of two complaints filed
with the police.
- 18 -
Cass. crim., 14 March 2007, Appeal No. 06-81.010. In these various cases, the Chambre
criminelle found that the body politic had suffered moral harm separate from the public interest
which is safeguarded by the Public Prosecutor’s Office.
It has indeed long been recognized that breaches of the duty of probity not only undermine
the public interest, they can also undermine individual interests: “Although the offence of passive
corruption established by Article 177 of the Penal Code was primarily established in the public
interest, it also aims to protect individuals who might . . . suffer direct and personal harm for which
they are entitled to seek redress before the criminal courts” (Cass. crim., 1 December 1992;
Dr. pén. 1993, comm. 126).
Since then, in such cases, the Chambre criminelle has recognized the admissibility of civilparty
applications filed by both natural persons and legal persons, regardless of whether they are
governed by private law, as in the case of a sporting federation (Cass. crim., 4 February 1997:
Juris-Data No. 1997-000569; Bull. crim. 1997, No. 45), or public law, as in the case of a public
housing office (Cass. crim., 21 May 1997: Juris-Data No. 1997-003328; Bull. crim. 1997,
No. 193).
As regards the person of the State, the Chambre criminelle specifically declared admissible
the State’s civil-party action against civil servants who engaged in favouritism and influence
peddling (Cass. crim., 10 March 2004, Bull. crim. No. 64).
On the complainants’ ability to file a civil-party application in the name and on behalf of
Gabon
We know that company law recognizes shareholders’ and members’ right to seek, in the
name and on behalf of the company, compensation for any harm caused to the company, which will
be awarded damages as appropriate: this is known as an ut singuli action.
This individual action may be brought by any shareholder or member, regardless of the
number of shares they own or the extent of their ownership interest.
This is an alternative action which presupposes that the corporate executive responsible for
legally representing the company has failed to act (Cass. crim., 12 December 2000, Appeal
No. 97-83.470) and/or is implicated in the proceedings.
In the present case, the claimant is asserting his right to bring an action not, of course, in his
capacity as a shareholder, but rather as a taxpayer. Nonetheless, in each of these situations, the
complainants’ standing arises from the contributions they have made (shares, ownership interests
or mandatory withholdings) to the group whose legal representation they intend to ensure.
What is at issue, moreover, is not the harm caused to a private-law company but rather the
harm caused to a State-society, a legal person governed by public law. Yet in both situations, the
harm has been caused to an organized group that has legal personality.
This reasoning is not at variance with our own positive law, as Article L. 2132-5 of the
General Code of Territorial Communities (CGCT) specifically allows taxpayers registered with a
municipality to bring any action that they believe falls to the municipality and which the
municipality has refused or neglected to take which measure has also been extended to
departmental taxpayers (Article L. 3133-1 of the CGCT) and regional taxpayers
(Article L. 4143-1 of the CGCT) under the Act of 12 April 2000.
The term “action” refers equally to proceedings to obtain payment, actions for rescission
based on inadequate consideration, and civil-party actions: the Chambre criminelle thus found that
- 19 -
Article L. 316-5 of the Municipalities Code (formerly Article L. 2132-5 of the CGCT) does not
distinguish between the various actions the municipality may be entitled to bring and its provisions
do not exclude civil-party actions seeking redress for an offence (Cass. crim., 12 May 1992).
Accordingly, any taxpayer can apply to the administrative court, acting as an administrative
authority in this instance, for the right to file a civil-party application in the place and stead of the
municipality, in order to institute criminal proceedings and obtain redress for any harm the latter
has incurred.
According to the jurisprudence of the Conseil d’état in this respect, authorization is subject
to two conditions: authorization is granted if the action is of sufficient material interest to the
municipality and the municipality has a prospect of success. In civil-party actions, the second
condition is satisfied where the evidence in the case-file leads to the suspicion that a criminal
offence has been committed (CE, 26 March 1999, Ville de Paris, Juris data No. 1999-050213).
These different measures provide a basis for solutions that can be readily applied to the facts
which are the subject of this complaint:
Gabon has suffered direct and personal harm as a result of the offences perpetrated on French
territory;
the legal representatives of Gabon have neglected to bring legal proceedings, and for good
reason, since the misconduct at issue is specifically attributed to the highest ruling authority of
the State of Gabon;
the Public Prosecutor’s Office refused to lend its support to the complainants;
since the action brought by Mr. Grégory Ngbwa Mintsa is a subsidiary action, it aims to serve
the pecuniary and moral interests of the body politic.
For all of these reasons, it would be deeply unfair to cite a lack of special authorization as
grounds for denying the complainant the right to file a civil-party application aimed at seeking
redress for the harm caused to the complainant’s community.
With this in mind, the reasons given in the judgment of the Colmar Cour d’appel of
10 February 1977, cited above, bear mentioning. After recalling that the criminal courts had in two
situations entertained civil-party actions brought by associations that did not have the legal
authority to do so, the appeal judges decided that:
“by analogy and a fortiori considering the interest at stake, the same should apply to
the complaint filed by ‘Aide à toute détresse’ since, by definition, this group provides
care only for individuals who are completely destitute, incapable of safeguarding their
own rights and interests, and rejected by society, and to whom, as in the present case,
the judicial and administrative authorities refuse to lend their support”.
Accordingly, even though there was no law at that time which allowed an association to
bring a collective civil-party action before the criminal courts, the appeal court nonetheless found
the civil-party application of the association “Aide à toute détresse” admissible. In the absence of
any grounding in written law, this solution is based on grounds of equity. Indeed, since the Public
Prosecutor’s Office refused to lend the victims its support, a finding to the contrary would have had
the effect of depriving them of a judicial remedy and their right to redress. That is precisely the risk
in the present case.
It follows from the foregoing that, as a result of the criminal misconduct committed by
Mr. Omar Bongo and the members of his entourage, Gabon has suffered direct and personal harm
- 20 -
for which, in accordance with Article 2 of the Code of Criminal Procedure, it is entitled to seek
redress by filing a civil-party application before the criminal courts, albeit through the intermediary
of one of its citizens.
The second ground: the harm suffered by Mr. Grégory Ngbwa Mintsa himself
Secondly, there is no doubt that Mr. Grégory Ngbwa Mintsa himself suffered harm as a
result of the misconduct claimed in this complaint.
The taxpayers of Gabon are the first to lose out as a result of the criminal operations asserted
in this complaint:
from a material standpoint, harm was caused by the fact that Mr. Grégory Ngbwa Mintsa’s
taxes were used for purposes other than those intended. The misappropriations that were
committed resulted in him being deprived of public spending in the same proportion;
from a moral standpoint, harm was caused by the fact that the misconduct undermined
Mr. Grégory Ngbwa Mintsa’s legitimate confidence in the integrity of the State apparatus.
Separate from the harm caused to the legal person of the State, the harm suffered by
Mr. Grégory Ngbwa Mintsa is also distinct from the public interest. As noted above, it has been
recognized that offences consisting in breaches of the duty of probity are liable to undermine the
interests of individuals who could suffer personal harm for which “they have grounds for obtaining
redress before the criminal courts” (Crim., 1 December 1992).
*
* *
Lastly, it should be recalled that Article 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms provides: “Everyone whose rights and freedoms as set
forth in this Convention are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an official capacity”
(Right to an effective remedy).
Yet there is no doubt that depriving Mr. Grégory Ngbwa Mintsa of the right to file a
civil-party application would violate Article 1 of the Protocol of 1952, which provides that every
natural or legal person is entitled to the peaceful enjoyment of his possessions — bearing in mind
that the notion of “possessions” in European law covers assets of all kinds, regardless of their
formal classification under domestic law.
*
* *
Under these circumstances, the undersigned complainants have the honour to file a
complaint with the Senior Investigating Judge against the following natural persons, having regard
to Article 121-1 of the Penal Code:
- 21 -
As regards Mr. Omar Bongo and his entourage
Albert Bernard Bongo, known as Omar Bongo Ondimba, Head of State of Gabon;
Edith Lucie Bongo, daughter of Denis Sassou Nguesso and wife of Omar Bongo;
Pascaline Bongo, daughter of Omar Bongo and chief of staff of the Head of State;
Ali Bongo Ondimba, son of Omar Bongo and Minister for Defence of Gabon;
Arthur Ondimba Bongo, son of Omar Bongo;
Omar Denis Junior Bongo Ondimba (born 19 July 1964), son of Omar Bongo;
Omar Ben Bongo (born 1 February 1978), son of Omar Bongo;
Jeff Thierry Arsène Jaffar Bongo, son of Omar Bongo;
Yacine Queenie Bongo, daughter of Omar Bongo;
Audrey Blanche Bongo Ondimba, daughter of Omar Bongo;
Jean Ping, former State Minister, Chairperson of the African Union Commission;
Nesta Shatika Bongo Ping, daughter of Jean Ping, granddaughter of Omar Bongo;
As regards Mr. Denis Sassou Nguesso and his entourage
Denis Sassou Nguesso (born 1 January 1943), Head of State of Congo-Brazzaville;
Antoinette Sassou Nguesso, wife of Denis Sassou Nguesso;
Denis Christel Sassou Nguesso (born 14 January 1975), son of Denis Sassou Nguesso
and CEO of Cotrade (subsidiary of the State-owned oil company SNPC);
Denis Nguesso (born 8 March 1967), son of Denis Sassou Nguesso;
Julienne Sassou Nguesso, daughter of Denis Sassou Nguesso;
Maurice Nguesso, older brother to Denis Sassou Nguesso;
Wilfrid Nguesso, son of Maurice Nguesso and nephew of Denis Sassou Nguesso;
Edgar Serge Ruphin Nguesso, son of the late Eugène Nguesso (brother of Denis
Sassou Nguesso);
Jean-François Ndengue, former director of the Congolese police, implicated in the
“Disappeared of the Beach” case;
Claudia Carole Ikia Lemboumba (married name Sassou Nguesso), advisor to the Head of
State;
Marguerite Ambendet Nguesso;
- 22 -
As regards Mr. Teodoro OBIANG and his entourage
Teodoro Obiang Mbasogo (born 5 June 1942), Head of State of Equatorial Guinea;
Teodoro Nguema Obiang (born 24 June 1969), son of Teodoro Obiang, Minister for
Agriculture and Forestry and chief executive of the company SOMAGUI FORESTAL;
For handling misappropriated public funds, offences provided for and punishable under
Articles 321-1 and 432-15 of the Penal Code;
The investigating judge should also determine whether the bank accounts identified during
the police investigation were funded through unlawful financial flows characteristic of the offence
of handling misappropriated public funds;
Moreover, a close look should be taken at the role played by various intermediaries, be they
natural or legal persons, which facilitated and/or benefited from the commission of the criminal
acts — with regard to which the present complaint is also filed for complicity in handling
misappropriated public funds, complicity in the misappropriation of public funds, money
laundering, complicity in money laundering, misuse of corporate assets, complicity in misuse of
corporate assets, breach of trust, complicity in breach of trust, and concealment of each of these
offences, offences provided for and punishable under Articles 121-6, 121-7, 321-1 and 432-15 of
the Penal Code (complicity in handling misappropriated public funds), Articles 121-6, 121-7 and
432-15 of the Penal Code (complicity in the misappropriation of public funds), Article 324-1 of the
Penal Code (money laundering), Articles 121-6, 121-7 and 324-1 of the Penal Code (complicity in
money laundering), Article 241-3 of the Commercial Code (misuse of corporate assets),
Article 121-6 and 121-7 of the Penal Code and Article 241-3 of the Commercial Code (complicity
in misuse of corporate assets); Article 314-1 of the Penal Code (breach of trust), Articles 121-6,
121-7 and 314-1 of the Penal Code (complicity in breach of trust) and Article 321-1 of the Penal
Code (concealment);
For all of these reasons, a complaint is also filed against person(s) unknown.
___________
ANNEX 2
Note Verbale No. 158/865 from the Ministry of Foreign Affairs of the French Republic
to the Embassy of the Republic of Equatorial Guinea,
2 March 2017
Note Verbale No. 158/865 from the Ministry of Foreign Affairs of the French Republic
to the Embassy of the Republic of Equatorial Guinea, 2 March 2017
[Translation]
The Ministry of Foreign Affairs and International Development, Protocol Department,
presents its compliments to the Embassy of the Republic of Equatorial Guinea and, with reference
to its Note Verbale No. 069/2017 dated 15 February 2017, has the honour to advise it of the
following:
The Protocol Department wishes to point out that the question of the status of the building
located at 42 avenue Foch in Paris (16th arr.) is at the centre of the dispute which
Equatorial Guinea has brought before the International Court of Justice. In keeping with its
consistent position, France does not consider the building located at 42 avenue Foch in Paris
(16th arr.) as forming part of the premises of the diplomatic mission of the Republic of
Equatorial Guinea in France.
In accordance with the Order made by the International Court of Justice on 7 December
2016, and pending the Court’s final decision in the case, France will ensure that the premises
located at 42 avenue Foch receive treatment equivalent to that required by Article 22 of the Vienna
Convention on Diplomatic Relations, in order to ensure their inviolability.
___________
ANNEX 3
Note Verbale No. 628/12 from the Embassy of the Republic of Equatorial Guinea to the
Ministry of Foreign Affairs of the French Republic, 19 September 2012
Note Verbale No. 628/12 from the Embassy of the Republic of Equatorial Guinea to the
Ministry of Foreign Affairs of the French Republic, 19 September 2012
[Translation]
The Embassy of the Republic of Equatorial Guinea in France presents its compliments to the
Ministry of Foreign and European Affairs (Protocol Department, Diplomatic Privileges and
Immunities Division) and, with reference to its Note Verbale No. 3345/PRO/PID of 25 July 2012,
has the honour to request a special residence permit for H.E. Ms Mariola BINDANG OBIANG,
Ambassador Extraordinary and Plenipotentiary of the Republic of Equatorial Guinea in France, and
her family. The notification forms regarding the assumption of her duties and the members of her
family are annexed hereto.
___________
- 2 -
ANNEX 4
Record of failure to appear before the Paris Tribunal de grande instance, 1 March 2012
Record of failure to appear before the Paris Tribunal de grande instance, 1 March 2012
[Translation]
Paris Cour d’appel
Paris Tribunal de grande instance
Chambers of Roger Le Loire
Senior judge in charge of the investigation
RECORD OF FAILURE TO APPEAR
Prosecution No. 0833796017
Investigation No. 2292/10/12
CRIMINAL PROCEEDINGS
1 MARCH 2012
We, Roger LE LOIRE and René GROUMAN, senior judges in charge of the investigation at
the Paris Tribunal de grande instance, sitting in chambers, assisted by Françoise LE MEST, clerk,
Note that Mr. Teodoro NGUEMA OBIANG MANGUE, choosing as his address for
service the offices of Mr. Emmanuel MARSIGNY, 100 rue de l’Université, 75007 PARIS, who
was summoned to appear in chambers today at 2.30 p.m. for questioning at first appearance, has
failed to appear.
Done in chambers,
(Signed) Roger LE LOIRE
(Signed) René GROUMAN
Senior judges in charge of the investigation
(Signed) Clerk.
- 2 -
Paris Cour d’appel
Paris Tribunal de grande instance
CHAMBERS OF MR. ROGER LE LOIRE
SENIOR JUDGE IN CHARGE OF THE INVESTIGATION
RENÉ GROUMAN
JOINTLY ASSIGNED SENIOR JUDGE IN CHARGE OF THE INVESTIGATION
Prosecution No. 0833796017
Investigation No. 2292/10/1
SUMMONS TO ATTEND A FIRST APPEARANCE
The senior judges in charge of the investigation
to
Mr. Teodoro NGUEMA OBIANG MANGUE
State Minister for Agriculture and Forestry
Ministry of Agriculture
Malabo
Equatorial Guinea
Summons delivered to Mr. MARSIGNY on 24 January 2012
Received in person this 24 January 2012
Paris, 23 January 2012
Dear Sir,
In accordance with Article 80-2 of the Code of Criminal Procedure, please be informed that
we are considering placing you under judicial examination. To that end, we are summoning you to
attend a first appearance, in an investigation opened:
FOR HAVING IN PARIS AND ON NATIONAL TERRITORY DURING 1997 AND UNTIL NOVEMBER 2008,
IN ANY EVENT FOR A PERIOD NOT COVERED BY PRESCRIPTION, ASSISTED IN MAKING HIDDEN
INVESTMENTS OR IN CONVERTING THE DIRECT OR INDIRECT PROCEEDS OF A FELONY OR
MISDEMEANOUR, IN THIS INSTANCE OFFENCES OF MISUSE OF CORPORATE ASSETS,
MISAPPROPRIATION OF PUBLIC FUNDS, THE UNLAWFUL TAKING OF INTEREST AND BREACH OF
TRUST, BY ACQUIRING A NUMBER OF MOVABLE AND IMMOVABLE ASSETS OUT OF THE FUNDS OF
THE FIRMS EDUM, SOCAGE AND SOMAGUI FORESTAL, ACTS CHARACTERIZED AS
LAUNDERING OF THE PROCEEDS OF THE ABOVE-MENTIONED OFFENCES, ACTS WHICH ARE DEFINED
AND PUNISHABLE UNDER ARTICLES 432-12, 432-15, 324-1 AND 314-1 OF THE PENAL CODE AND
ARTICLE 241-3 OF THE COMMERCIAL CODE.
- 3 -
Pursuant to a judgment of the Cour de cassation (Chambre criminelle) dated
9 November 2010,
You are summoned to appear on 1 March 2012 at 2.30 p.m.
In our chambers at the Paris TRIBUNAL de GRANDE INSTANCE, 5/7 rue des Italiens,
75009 Paris, Chambers No. 303
VERY IMPORTANT
You have the right to be assisted by a lawyer.
You may choose the lawyer who will assist you or request that the Chairman of the Bar
choose a lawyer registered with the Bar for you.
You must inform me of your choice as soon as possible.
(Signed) Roger LE LOIRE
(Signed) René GROUMAN.
Senior judges in charge of the investigation
___________
ANNEX 5
Summons to attend a first appearance, 22 May 2012
Summons to attend a first appearance, 22 May 2012
[Translation]
Paris Cour d’appel
Paris Tribunal de grande instance
Chambers of Mr. Roger Le Loire
Senior Judge in charge of the investigation
(Mr. René Grouman, Jointly assigned Senior
Judge in charge of the investigation)
Prosecution No.: 08 337 9601/ 7
Investigation No.: 2292/10/12
The investigating judge
to
Mr. Teodoro NGUEMA OBIANG MANGUE
State Minister for Agriculture and Forestry
Ministry of Agriculture
MALABO
EQUATORIAL GUINEA
Paris, 22 May 2012
Dear Sir,
In accordance with Article 80-2 of the Code of Criminal Procedure, please be informed that I
am considering placing you under judicial examination. To that end, I am summoning you to attend
a first appearance, in an investigation opened:
FOR HAVING IN PARIS AND ON NATIONAL TERRITORY, DURING 1997 AND UNTIL OCTOBER 2011, IN
ANY EVENT FOR A PERIOD NOT COVERED BY PRESCRIPTION, ASSISTED IN INVESTING, CONCEALING
OR CONVERTING THE DIRECT OR INDIRECT PROCEEDS OF A FELONY OR MISDEMEANOUR, IN THIS
INSTANCE OFFENCES OF MISUSE OF CORPORATE ASSETS, MISAPPROPRIATION OF PUBLIC
FUNDS, THE UNLAWFUL TAKING OF INTEREST AND BREACH OF TRUST, BY ACQUIRING A NUMBER
OF MOVABLE AND IMMOVABLE ASSETS AND PAYING FOR A NUMBER OF SERVICES OUT OF THE
FUNDS OF THE FIRMS EDUM, SOCAGE AND SOMAGUI FORESTAL, ACTS CHARACTERIZED AS
LAUNDERING OF THE PROCEEDS OF THE ABOVE-MENTIONED OFFENCES,
ACTS WHICH ARE DEFINED AND PUNISHABLE UNDER ARTICLES 432-12, 432-15, 324-1 AND 314-1
OF THE PENAL CODE AND ARTICLE L 241-3 OF THE COMMERCIAL CODE.
Pursuant to a judgment of the Cour de Cassation (Chambre criminelle) dated
9 November 2010 and the Public Prosecutor’s application to extend the investigation dated
31 January 2012,
You are summoned to appear on 11 July 2012 at 3 p.m.
In my chambers at the Paris TRIBUNAL de GRANDE INSTANCE, 5/7 rue des Italiens
75009 Paris, Chambers No. 303.
VERY IMPORTANT
You have the right to be assisted by a lawyer.
You may choose the lawyer who will assist you or request that the Chairman of the Bar
choose a lawyer registered with the Bar for you.
- 2 -
You must inform me of your choice as soon as possible.
(Signed) Mr. René GROUMAN.
Senior Judge in charge of the investigation
___________
ANNEX 6
Record of failure to appear before the Paris Tribunal de grande instance, 11 July 2012
Record of failure to appear before the Paris Tribunal de grande instance, 11 July 2012
[Translation]
Paris Cour d’appel
Paris Tribunal de grande instance
Chambers of Roger Le Loire
Senior judge in charge of the investigation
RECORD OF FAILURE TO APPEAR
Prosecution No. 0833796017
Investigation No. 2292/10/12
CRIMINAL PROCEEDINGS
11 July 2012
We, Roger LE LOIRE, senior judge in charge of the investigation at the Paris Tribunal de
grande instance, sitting in chambers, assisted by Françoise LE MEST, clerk,
Note that Mr. Teodoro NGUEMA OBIANG MANGUE, who was summoned to appear in
chambers today at 3 p.m. for questioning at first appearance, has failed to appear.
Done in chambers,
(Signed) Senior judge in charge of the investigation
(Signed) Clerk.
___________
ANNEX 7
Letter No. 140831 from the Registrar of the Court to the Minister for Foreign Affairs of the
French Republic, 25 September 2012
Letter No. 140831 from the Registrar of the Court to the Minister for Foreign Affairs of the
French Republic, 25 September 2012
[Translation]
I have the honour to inform you that the Republic of Equatorial Guinea has today filed in the
Registry of the Court a document with annexes, entitled “Application instituting proceedings
including a request for provisional measures”.
It is stated on page 18, point VI of the document that “the Republic of Equatorial Guinea
seeks to found the jurisdiction of the Court, in accordance with Article 38, paragraph 5, of the
Rules of Court, on the consent of the French Republic, which will certainly be given”.
Article 38, paragraph 5, of the Rules of Court therefore applies. It provides:
“When the applicant State proposes to found the jurisdiction of the Court upon a
consent thereto yet to be given or manifested by the State against which such
application is made, the application shall be transmitted to that State. It shall not
however be entered in the General List, nor any action be taken in the proceedings,
unless and until the State against which such application is made consents to the
Court’s jurisdiction for the purposes of the case.”
Please find enclosed herewith a duly signed copy of the document and its annexes.
As regards the “Request for provisional measures”, the situation is as follows: as long as
there is no prima facie jurisdiction, but only an invitation to accept jurisdiction, the provisions of
the Rules of Court governing the procedure for registering requests for the indication of provisional
measures are waived in favour of the above-mentioned Article 38, paragraph 5, which provides that
no action shall be taken in the proceedings unless and until the jurisdiction of the Court has been
accepted.
I also have the honour to transmit to you herewith a copy of a letter dated 22 September
2012 which accompanied the “Application”, from H.E. Mr. Pedro Ela Nguema Buna, Minister for
Foreign Affairs of the Republic of Equatorial Guinea, and a copy of a document dated
19 September 2012 in which H.E. Mr. Obiang Nguema Mbasogo, President of the Republic of
Equatorial Guinea, gives full powers to H.E. Ms Mariola Bindang Obiang.
___________
ANNEX 8
Article published in Jeune Afrique, 13 March 2015,
“France – Guinée Equatoriale : porte de sortie en vue pour Teodorin ?”
Available at the following address:
http://www.jeuneafrique.com/226650/politique/france-guin-e-quatoriale-p…-
teodor-n/ (site consulted 21 March 2017).
Article published in Jeune Afrique, 13 March 2015
[Translation]
FRANCE V. EQUATORIAL GUINEA: EXIT IN SIGHT FOR TEODORIN?
Are we heading towards a dignified exit for Teodoro Nguema Obiang Mangue, who is facing
prosecution in France for “ill-gotten gains”? His counsel would like to believe so.
Jean-Charles Tchikaya, counsel for Equatorial Guinea in the thorny “ill-gotten gains” case,
hopes in the coming months to see an end to the two-year feud between France and
Teodoro Nguema Obiang Mangue (Teodorin), Vice-President and son of the President of
Equatorial Guinea.
Disappointed by the outcome of negotiations between Teodorin’s defence team and the
French judicial authorities — which purportedly called for his client to plead guilty, abandon
attached property and pay a fine of up to €50 million — Mr. Tchikaya intends to rely on the
International Court of Justice to recognize the Vice-President’s diplomatic immunity and thus bring
the proceedings to an end.
A solution made possible by Equatorial Guinea’s ratification, in November 2014 at United
Nations Headquarters in New York, of the 1961 Optional Protocol to the Vienna Convention on
Diplomatic Relations, concerning the Compulsory Settlement of Disputes.
___________
ANNEX 9
Press release of the spokesperson for the Government of the Republic of Equatorial Guinea,
7 December 2016, Malabo
Press release of the spokesperson for the Government of the Republic of Equatorial Guinea,
7 December 2016, Malabo
(English version from the official website of the Government of the Republic of Equatorial Guinea
at http://www.guineaecuatorialpress.com/noticia.php?id=9000&lang=en; original text in Spanish
available at http://www.guineaecuatorialpress.com/noticia.php?id=9000&lang=es; site consulted
on 24 August 2017)
GOVERNMENT RESPONSE FOLLOWING RULING FROM INTERNATIONAL
COURT OF JUSTICE IN THE HAGUE
The Minister for Information, Press and Radio, and Spokesperson for the Government of the
Republic of Equatorial Guinea, Eugenio Nze Obiang, signed a communique in response to the
ruling passed by the International Court of Justice, in The Hague.
Malabo, 7 December 2016
The Government of Equatorial Guinea has received the decision by the International Court in
The Hague, regarding the complaint lodged by our country against France.
We recall that the process settled in the Court in The Hague, began as a result of the previous
accusation against some African Heads of State and their families, in the case known as
“dishonestly acquired goods”. However, the case finally focussed solely on the person of the
Vice-President of Equatorial Guinea, H. E. Nguema Obiang Mangue. For that reason, the State of
Equatorial Guinea lodged a complaint against France before the International Court of The Hague,
regarding attacks on the immunity of the Vice-President of Equatorial Guinea.
Following the ruling by the International Court in The Hague, the Government of Equatorial
Guinea officially declares that:
The Government of Equatorial Guinea has always considered that the action by the French
court is a unilateral, unjustified action, as a local court cannot seek to exercise extra-national
judicial power over bodies, institutions and persons extraneous to France which fall completely
outside its power and jurisdiction, especially when dealing with a senior representative of a State,
as in this case is the Vice-President of the Republic of Equatorial Guinea. For that reason, our
Executive entrusted the matter to the International Court of Justice, as an institution created by the
United Nations to solve judicial disputes between different countries.
The Government of Equatorial Guinea is disappointed that the International Court in The
Hague has not given a definitive ruling on the matter, which lacks a solid base and which, however,
shows bad faith.
However, the Government of Equatorial Guinea is satisfied because, in the ruling given by
the International Court of Justice in The Hague this 7th December 2016, there is clear recognition
of the diplomatic nature of the building located at 42, Avenida Foch, in Paris, and as such,
recognition that the property does not constitute “dishonestly acquired goods”. The Equatoguinean
State has reiterated its claim to ownership of this property, which was the property of the
Equatoguinean State, but the French party refused to recognise this, refusing to yield on this point.
The recognition that the State of Equatorial Guinea is the legitimate owner of the building,
with all the objects it contains, is thus recognition that it is not “dishonestly acquired goods”, and it
is also evidently proof of the judicial farce that French justice is unilaterally trying to serve up.
- 2 -
On demonstrating that the building is not “dishonestly acquired goods”, the French party
should have finally withdrawn the accusation against the Vice-President of the Republic of
Equatorial Guinea, as it was unsupported by the basis of the main accusation, and thus recognise
unambiguously the immunity of H.E. Nguema Obiang Mangue. To not act in this way would
confirm the attempt to implement a destabilisation plan by the Government of France against the
Republic of Equatorial Guinea.
In any case, the Government and the People of Equatorial Guinea, as a free, independent,
sovereign State, will pursue its fight until the end, in defence of its legitimate interests and its
honour, using to that end the resources of International Justice and Diplomacy between States that
respect International Law, and advocated by the United Nations.
(Signed) His Excellency Eugenio NZE OBIANG
Spokesperson for the Government of the
Republic of Equatorial Guinea
Equatorial Guinea Press and Information Office.
___________
ANNEX 10
Press release of the Representation of Equatorial Guinea in The Hague, 8 December 201[6]
Press release of the Representation of Equatorial Guinea in The Hague, 8 December 201[6]
(English version from the official website of the Government of the Republic of Equatorial Guinea
at http://www.guineaecuatorialpress.com/noticia.php?id=9002&lang=en; original text in Spanish
available at http://www.guineaecuatorialpress.com/noticia.php?id=9002&lang=es)
EQUATORIAL GUINEA WINS FIRST BATTLE AGAINST FRANCE IN THE
INTERNATIONAL COURT OF JUSTICE
On the afternoon of 7th December, a press conference by the judicial leaders was called,
after the International Court of Justice in The Hague presented its conclusions following the
complaint lodged by Equatorial Guinea against France.
Our country was represented by a Commission made up of the Deputy Minister for Justice,
Worship and Penitentiary Institutions, Juan Olo Mba Nseng, and the accredited Equatorial Guinea
Plenipotentiary Extraordinary Ambassador to Belgium and the European Union, Carmelo Nvono-
Ncá, together with the State lawyers, Francisco Evuy Nguema and Francisco Moro Mba, who have
been dealing with the case for several years.
Strangely, the lawyers from the French party did not appear at this press conference, and
their representatives left with their heads down. The acting President based his speech on various
articles of the Convention against trans-national organised crime and the optional signing protocol
for the Vienna Convention regarding diplomatic relations, and not only spoke of the noble motives
why the Republic of Equatorial Guinea began this process, but finally, together with all these
attorneys, imposed on France the following measures:
The International Court, through a unanimous decision by its members, calls on France to
take all the necessary measures to guarantee security, respect and adequate treatment of everything
relating to the diplomatic headquarters at 42, Avenida Foch, in Paris.
The French nations is also urged to abstain from practices of confiscation of goods and other
objects belonging to Equatorial Guinea.
Likewise, the International Court rejects the petition brought by the French State to remove
this case from the general list.
For the first time, an African country has brought a great European and world power before
International Justice. This ruling by the highest body of International Justice has shown that neither
the geographical size, nor the small population, nor the fact of being African, should stop the fight
against harmful intentions against our countries.
Text: Deogracias Ekomo Ndong Asue (Presidential Press)
Source: Equatorial Guinea Representation in The Hague
Equatorial Guinea Press and Information Office
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ANNEX 11
Press release of the Equatorial Guinea Press and Information Office, 9 December 2016
Press release of the Equatorial Guinea Press and Information Office, 9 December 2016
(English version from the official website of the Government of the Republic of Equatorial Guinea
at http://www.guineaecuatorialpress.com/noticia.php?id=9005&lang=en; original text in Spanish
available at http://www.guineaecuatorialpress.com/noticia.php?id=9005&lang=es)
EQUATORIAL GUINEA WINS FIRST ROUND AGAINST FRANCE
Following the presentation by the International Court of Justice in The Hague of their
conclusions on 7 December, the media have viewed the ruling from various angles, but even the
most strident opponents of Equatorial Guinea have had to recognise the overwhelming rulings by
the Court in favour of the Equatoguinean complaint.
The decision adopted by the International Court which mentions the Diplomatic Mission is
the one most clearly reflecting the justice of the demand by Equatorial Guinea. The verdict is clear
that the building in Foch Avenue in Paris is part of the Equatorial Guinea Diplomatic Mission, and
must be respected as such.
“France is obliged, pending a final decision, to take all the necessary measures
within their power to ensure that the Equatorial Guinea Diplomatic Mission building
at No. 42 Foch Avenue, in Paris, receives the treatment outlined in article 22 of the
Vienna Convention, guaranteeing its inviolability.”
Furthermore, the French nation is also urged to abstain from practices of confiscation of
goods and other objects belonging to Equatorial Guinea.
In addition, The Hague Court rejected the claim by France to shelve the case due to the lack
of legal competence of the Court to rule on this litigation, as it considers to be within its
jurisdiction, in virtue of article I of the Optional Protocol of the Vienna Convention, to hear the
case.
As published in “La Cuarta Columna” and expressed through other media outlets,
“Equatorial Guinea has won the first round against France”.
Institutional Web Page General Directorate (DPGWIGE)
Equatorial Guinea Press and Information Office
___________
ANNEX 12
Letter from the President of Equatorial Guinea to the French President,
19 January 2017
Letter from the President of Equatorial Guinea to the French President,
19 January 2017
[Translation]
In the spirit of strengthening our political relations, I wish to advise you of the protracted
judicial proceedings instituted by the French association “Transparency International” against the
Vice-President of the Republic, in charge of Defence and State Security, which, in our view, are
procedurally flawed and currently damaging the excellent relations of friendship and co-operation
that our countries have long maintained.
Indeed, the proceedings in this dispute have failed to take into consideration the international
conventions governing diplomatic relations to which our two countries are parties, not to mention
the bilateral conventions concluded between the French Republic and the Republic of Equatorial
Guinea.
The situation I am bringing to your attention has been ongoing for several years now, and I
have always wished to discuss it with you personally since, as we see it, while respecting the
independence of the French judges, Your Excellency, as guarantor of the interests of your
Government, has the ability to mediate between the French courts and the Government of
Equatorial Guinea in order to avoid pointless confrontation.
In a similar vein, I agree with Your Excellency that this dispute could be resolved
diplomatically, if we relied on the Agreement on the protection of investments signed by our
Governments. For this reason, I am sending to Your Excellency Mr. Miguel OYONO NDONG
MIFUMU, Ambassador Extraordinary and Plenipotentiary of Equatorial Guinea, accredited to your
Government, with a petition for Your Excellency to mediate in this case. This would lead us to
suspend the proceedings instituted before the International Court of Justice, while safeguarding
judicial independence.
I take this occasion to renew my wishes of happiness and prosperity in 2017, and please
accept, Mr. President and dear friend, the assurances of my highest consideration.
___________
- 2 -
Note seeking a diplomatic resolution of the dispute
Regarding the seat of the diplomatic mission of the Republic of Equatorial Guinea
In response to the Order issued by the International Court of Justice on 7 December 2016,
whereby France was unanimously ordered to ensure the inviolability of the building at 42 avenue
Foch, it might be appropriate for France to notify the Embassy that it has taken note of the Order
and that the address is now regarded by both States as being that of the seat of the mission of the
Republic of Equatorial Guinea in France.
The Republic of Equatorial Guinea will then inform the International Court of Justice that it
is therefore no longer necessary to rule on that aspect of the dispute to which the two States have
found a permanent solution.
Regarding the situation of the Vice-President of Equatorial Guinea
The Agreement on the mutual protection of investments dated 3 March 1982, by which both
States are bound, provides for inter-State disputes concerning its interpretation and application to
be resolved by diplomatic means.
Since Equatorial Guinea has consistently maintained that the assets attached by the French
courts were all acquired lawfully and do not represent the proceeds of misappropriated public funds
or of an offence of any kind, consideration must be given to the question of their protection by
France under the aforementioned Agreement.
That being the case, in the context of diplomatic discussions between the two States provided
for under Article 11 of the said Agreement, and before any decision by the French courts on the
substance of the dispute, the two States could agree to consider that the assets lawfully acquired in
France meet the definition of “investments” within the meaning of Article 1 of the same Agreement
and that, consequently, France has a duty to protect them.
Thus, a permanent solution to the dispute between the two States having been found, it will
only remain for the Republic of Equatorial Guinea to end the proceedings pending before the
International Court of Justice.
___________
ANNEX 13
Letter from the President of the French Republic to the
President of the Republic of Equatorial Guinea, 16 February 2017
Letter from the President of the French Republic to the
President of the Republic of Equatorial Guinea, 16 February 2017
[Translation]
Thank you for your letter, which I read with interest.
I share your view of the quality of the bilateral relationship that unites our countries and
which is not altered by the dispute to which you referred. As I mentioned at the recent
Africa-France summit in Bamako, I am committed to dialogue and co-operation between our
countries, particularly with regard to regional security.
As regards the facts mentioned in your letter, they are the subject of court decisions in
France and judicial proceedings are ongoing.
As the guarantor of judicial independence, I cannot challenge these decisions or influence
the proceedings. I therefore regret that I am unable to accept the offer to settle the matter through
the channels proposed by the Republic of Equatorial Guinea, which from a legal standpoint would
subvert this independence.
Your country has, moreover, decided to bring the dispute before the International Court of
Justice and request provisional measures.
In this regard, I can assure you that France will comply with the Order of 7 December 2016
of the International Court of Justice in the case concerning Immunities and Criminal Proceedings
and that, pending the Court’s final decision, it will ensure that the premises at 42 avenue Foch in
Paris receive treatment equivalent to that required by Article 22 of the Vienna Convention on
Diplomatic Relations, in order to ensure their inviolability.
In any event, I would like to assure you that I am committed to working with you to build a
forward-looking partnership between our countries.
___________
Preliminary objections of France