Written statement of Equatorial Guinea on the preliminary objections raised by France

14737
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING IMMUNITIES AND CRIMINAL PROCEEDINGS
(EQUATORIAL GUINEA v. FRANCE)
WRITTEN STATEMENT OF THE OBSERVATIONS AND SUBMISSIONS
OF THE
REPUBLIC OF EQUATORIAL GUINEA
ON THE
PRELIMINARY OBJECTIONS RAISED BY THE FRENCH REPUBLIC
31 July 2017
[Translation by the Registry]
TABLE OF CONTENTS
Page
INTRODUCTION ................................................................................................................................... 1􀀃
I. History of the proceedings ......................................................................................................... 1􀀃
II. Summary of Equatorial Guinea’s arguments ........................................................................... 1􀀃
A.􀀃The Court has jurisdiction under the United Nations Convention against
Transnational Organized Crime and the Optional Protocol to the Vienna
Convention on Diplomatic Relations .................................................................................. 1􀀃
B.􀀃 France’s preliminary objections must be dismissed ........................................................... 2􀀃
III. Structure of this Written Statement ......................................................................................... 3􀀃
CHAPTER1 GENERAL OBSERVATIONS ............................................................................................... 5􀀃
I. Recent events relating to the case .............................................................................................. 5􀀃
A. Developments in the criminal proceedings ......................................................................... 5􀀃
B. Diplomatic exchanges ......................................................................................................... 9􀀃
C. Facts relating to the building at 42 avenue Foch ............................................................... 10􀀃
II. The subject-matter of the dispute ........................................................................................... 12􀀃
III. The so-called “abusive nature” of Equatorial Guinea’s Application .................................... 17􀀃
A. There is no abuse of process by Equatorial Guinea .......................................................... 18􀀃
B. There is no abuse of rights by Equatorial Guinea ............................................................. 20􀀃
IV. France raises questions pertaining to the merits to conclude that the Court lacks
jurisdiction ............................................................................................................................. 21􀀃
CHAPTER 2 THE COURT’S JURISDICTION ON THE BASIS OF THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ................................................... 22􀀃
I. The obligation pursuant to Article 4 of the Palermo Convention to carry out the
obligations under the Convention in a manner consistent with the principles of
sovereign equality and non-intervention ................................................................................ 23􀀃
II. The obligations under the Palermo Convention that France has failed to carry out in a
manner consistent with the principles of sovereign equality and non-intervention .............. 26􀀃
A.􀀃France has failed to carry out the obligations under the Convention relating to
criminal proceedings in a manner consistent with the principles of sovereign
equality and non-intervention ........................................................................................... 27􀀃
B.􀀃 France has failed to carry out the obligations under the Convention relating to the
criminalization of the laundering of proceeds of crime and the establishment of
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criminal jurisdiction to prosecute that offence in a manner consistent with the
principles of sovereign equality and non-intervention ...................................................... 30􀀃
C.􀀃 France has failed to carry out the obligations under the Convention relating to the
confiscation, seizure and disposal of property in a manner consistent with the
principles of sovereign equality and non-intervention ...................................................... 36􀀃
D.􀀃France has failed to carry out the obligations under the Convention relating to
co-operation between States in a manner consistent with the principles of sovereign
equality and non-intervention ........................................................................................... 38􀀃
Conclusions ................................................................................................................................. 38􀀃
CHAPTER 3 THE COURT’S JURISDICTION ON THE BASIS OF THE OPTIONAL PROTOCOL TO THE
VIENNA CONVENTION ON DIPLOMATIC RELATIONS .................................................................. 40􀀃
I. There is a dispute between Equatorial Guinea and France regarding the interpretation
and application of the Vienna Convention on Diplomatic Relations ..................................... 42􀀃
A.􀀃There is a dispute regarding the interpretation and application of Article 1 (i) of the
VCDR ............................................................................................................................... 42􀀃
B.􀀃 There is a dispute regarding the interpretation and application of Article 22 of the
VCDR ............................................................................................................................... 45􀀃
II. The Court has jurisdiction to entertain the entire dispute relating to the interpretation
and application of the VCDR ................................................................................................. 48􀀃
Conclusions ................................................................................................................................. 49􀀃
SUBMISSIONS .................................................................................................................................... 50􀀃
ATTESTATION ................................................................................................................................... 51􀀃
LIST OF ANNEXES ............................................................................................................................. 52􀀃
INTRODUCTION
I. History of the proceedings
0.1. The present case was brought before the International Court of Justice by an Application
filed by the Republic of Equatorial Guinea (hereinafter “Equatorial Guinea”) on 13 June 2016.
0.2. By an Order dated 1 July 2016, the Court fixed time-limits for the filing of the written
pleadings, namely 3 January 2017 for Equatorial Guinea’s Memorial and 3 July 2017 for the
Counter-Memorial of the French Republic (hereinafter “France”).
0.3. On 29 September 2016, Equatorial Guinea filed a Request for the indication of
provisional measures. Hearings on this request were held from 17 to 19 October 2016. In its Order
of 7 December 2016, the Court unanimously indicated the following provisional measures:
“France shall, pending a final decision in the case, 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.”
In addition, the Court, again unanimously, “reject[ed] the request of France to remove the case
from the General List”1.
0.4. On 3 January 2017, Equatorial Guinea filed its Memorial in accordance with the Court’s
Order of 1 July 2016.
0.5. On 31 March 2017, France raised a number of preliminary objections to the jurisdiction
of the Court2. By an Order dated 5 April 2017, the Court fixed 31 July 2017 as the time-limit for
the filing by Equatorial Guinea of a written statement of its observations and submissions on the
preliminary objections raised by France. Equatorial Guinea files this Written Statement pursuant to
that Order.
II. Summary of Equatorial Guinea’s arguments
A. The Court has jurisdiction under the United Nations Convention against Transnational
Organized Crime and the Optional Protocol to the Vienna Convention on Diplomatic
Relations
0.6. As explained in Equatorial Guinea’s Memorial3, the Court has jurisdiction to entertain
the present dispute under Article 35, paragraph 2, of the United Nations Convention against
Transnational Organized Crime (hereinafter the “Palermo Convention”)4 and under Article I of the
1 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 Dec. 2016, para. 99. In this Order, the Court also found that it did not have prima facie jurisdiction to entertain
Equatorial Guinea’s claim regarding the immunity ratione personae of its Vice-President in charge of National Defence
and State Security from the jurisdiction of the French courts (ibid., para. 50). However, the Court noted that “[t]he
decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with
the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves” (ibid.,
para. 98).
2 It should be noted that France has not complied with Article 79, paragraph 4, of the Rules of Court. Instead of
attaching copies of the documents in support of its preliminary objections, as required by Article 79, France merely refers
to a number of documents that it had produced on 14 October 2016, just before the start of the hearings on the request for
the indication of provisional measures.
3 Memorial of Equatorial Guinea, 3 Jan. 2017 (hereinafter “MEG”), Chap. 5.
4 Ibid., paras. 5.3-5.34.
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Optional Protocol to the Vienna Convention on Diplomatic Relations (hereinafter the “Optional
Protocol”)5. The dispute relating to the Palermo Convention chiefly concerns France’s violations of
the immunities to which Equatorial Guinea is entitled in respect of both its Vice-President and its
State property; the Optional Protocol is of relevance to the dispute concerning the inviolability of
the building located at 42 avenue Foch in Paris as premises of Equatorial Guinea’s diplomatic
mission in France.
0.7. The procedural conditions for submitting the dispute to the Court laid down by the
Palermo Convention and the Optional Protocol are met6. France does not contest this in its
Preliminary Objections.
0.8. There is a dispute between Equatorial Guinea and France concerning the interpretation
and application of the Palermo Convention, and in particular the interpretation and application of
Article 4, read in conjunction with other provisions of the Convention. By virtue of Article 4, the
States have undertaken to respect the principles of sovereign equality and non-intervention in the
performance of their obligations under the Convention. In this instance, France’s failure to respect
the immunity ratione personae of the Vice-President of Equatorial Guinea in charge of National
Defence and State Security, as well as the immunity from measures of constraint of the building
located at 42 avenue Foch, as property of the State of Equatorial Guinea; the overextension of
French criminal jurisdiction to the detriment of Equatorial Guinea’s exclusive jurisdiction over
certain offences; and France’s refusal to take note of the information provided by Equatorial
Guinea regarding the commission of such offences, constitute violations of Article 4 in carrying out
the terms of Articles 6, 11, 12, 14, 15 and 18 of the Convention.
0.9. The present dispute also concerns the interpretation and application of the Vienna
Convention on Diplomatic Relations (hereinafter the “VCDR”). Consequently, the Court has
jurisdiction pursuant to Article I of the Optional Protocol. In particular, it is a question of
ascertaining France’s breaches of the inviolability enjoyed by the building located at 42 avenue
Foch in Paris. This question concerns the interpretation and application of the VCDR, including,
but not limited to, Article 1 (i) and Article 22 thereof. The legal issues on which the Parties
disagree include: (i) the point at which premises become “premises of the mission” within the
meaning of the VCDR; and (ii) the effect, if any, of a unilateral, arbitrary or discriminatory refusal
by the receiving State to accept premises used for diplomatic purposes as “premises of the
mission”.
B. France’s preliminary objections must be dismissed
0.10. In its Preliminary Objections, France takes an extraordinarily narrow view of the
Court’s jurisdiction under the treaties granting it jurisdiction to settle disputes concerning their
“interpretation or application”. There is no basis for this restrictive interpretation in the
jurisprudence of the Court, or in that of other international courts. If France’s approach were to be
accepted, a great many compromissory clauses would be largely deprived of effect.
0.11. Equatorial Guinea can but express how deeply disappointed it is that France is once
again accusing it of acting in bad faith in bringing this dispute before the Court7. Initiating
proceedings can in no way be considered an unfriendly act between States8, and the suggestion that
5 MEG, paras. 5.35-5.48.
6 Ibid., paras. 5.4-5.8 and 5.36-5.43.
7 Preliminary Objections of France (hereinafter “POF”), paras. 59-75.
8 Manila Declaration on the Peaceful Statement of International Disputes, Annex to United Nations General
Assembly resolution 37/10 of 15 Nov. 1982, Sec. II, para. 5 (“Recourse to judicial settlement of legal disputes,
particularly referral to the International Court of Justice, should not be considered an unfriendly act between States”).
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recourse has been had to the Court in bad faith cannot be made lightly. Indeed, such an accusation
is entirely unfounded9.
0.12. France’s restrictive approach to the Palermo Convention and the VCDR does not only
seek to deprive the Court of its role in the peaceful settlement of disputes on the basis of those
treaties; France is also intent on minimizing the obligations accepted by the States parties in a
manner that is inconsistent with the object and purpose of the said treaties. This approach, which
invites confrontation and instability, cannot be accepted.
0.13. France’s argument that the present dispute concerns neither the interpretation or
application of the Palermo Convention, nor that of the VCDR, is all the more unacceptable given
that the French authorities themselves have knowingly acted on the basis of these conventions.
France itself has acknowledged, for instance, that the purpose of the provisions of French criminal
law which have been used as a basis for the proceedings against the Vice-President of Equatorial
Guinea in charge of National Defence and State Security, and for the measures of constraint against
the building located at 42 avenue Foch in Paris, is to give effect to the Palermo Convention.
Furthermore, the French courts expressly referred to this Convention in their request to Equatorial
Guinea for mutual legal assistance in 2013. Representatives of France have, moreover, paid regular
visits to the building located at 42 avenue Foch to obtain consular and other services, thereby
acknowledging that the said building houses the diplomatic mission of Equatorial Guinea.
0.14. In many respects, France’s preliminary objections to the Court’s jurisdiction are in fact
issues that go to the merits of the case. For example, France refers to an alleged uncertainty about
the date on which Equatorial Guinea acquired ownership of the building located at 42 avenue
Foch10 and the date on which that building was assigned for the purposes of Equatorial Guinea’s
diplomatic mission in France11. Such matters are not relevant at the preliminary objections stage;
Equatorial Guinea will not respond to them in this Written Statement. This certainly does not mean,
however, that they can be taken as accepted by Equatorial Guinea.
0.15. Equatorial Guinea’s main arguments with regard to the preliminary objections raised
by France can be summarized as follows:
􀁿 The subject-matter of the dispute between the Parties concerns the interpretation and
application of the Palermo Convention and the VCDR.
􀁿 Equatorial Guinea’s Application is not abusive.
􀁿 The Court has jurisdiction under Article 35, paragraph 2, of the Palermo Convention, since the
dispute concerns the interpretation and application of Article 4 of that Convention, read in
conjunction with Articles 6, 11, 12, 14, 15 and 18 thereof.
􀁿 The Court has jurisdiction under Article I of the Optional Protocol, since the dispute concerns
the interpretation and application of the VCDR, including Article 1 (i) and Article 22.
􀁿 Consequently, France’s preliminary objections must be dismissed in their entirety.
III. Structure of this Written Statement
0.16. After this introduction, the Written Statement comprises three chapters, followed by
Equatorial Guinea’s submissions.
9 See paras. 1.67-1.80 below.
10 POF, paras. 24-26.
11 Ibid., paras. 27-29.
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0.17. Chapter 1 contains a number of general observations. It is divided into four sections.
0.18. Section I deals with the recent events underlying the present dispute, in so far as they
are relevant in responding to France’s preliminary objections. It describes the developments in the
criminal proceedings since the filing of Equatorial Guinea’s Memorial on 3 January 2017 (A); the
diplomatic exchanges between the Parties since that date (B); and the facts relating to the building
located at 42 avenue Foch in Paris, in response to the misleading picture painted by France (C).
0.19. Section II responds to France’s assertions regarding the subject-matter of the dispute.
It will show, first, that Equatorial Guinea’s submissions do not go beyond the subject-matter of the
dispute submitted to the Court and, second, that Equatorial Guinea’s claims are indeed based on
conventions conferring jurisdiction on the Court, and not on customary international law as such.
0.20. Section III shows that, contrary to what France maintains, the Application brought
before the Court by Equatorial Guinea is not abusive.
0.21. Finally, Section IV demonstrates that, to a large extent, France’s objections go to the
merits of the case and should not be raised or decided upon at this stage of the proceedings.
0.22. Chapter 2 explains that the Court has jurisdiction, under Article 35, paragraph 2, of
the Palermo Convention, to entertain Equatorial Guinea’s claims. As mentioned above, those
claims are based on France’s violation of Article 4 of the Convention, read in conjunction with
Articles 6, 11, 12, 14, 15 and 18 thereof.
0.23. Chapter 3 shows that the Court also has jurisdiction under the Optional Protocol to
rule on Equatorial Guinea’s claim regarding France’s violation of the VCDR in respect of the
building located at 42 avenue Foch. In its Preliminary Objections, France itself appears to concede
that the dispute between the Parties concerns the interpretation and application of the VCDR, even
though it has a very restrictive understanding of the scope of this dispute.
0.24. In its submissions, Equatorial Guinea asks the Court to dismiss France’s preliminary
objections and declare that it has jurisdiction to entertain the present case.
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CHAPTER 1
GENERAL OBSERVATIONS
1.1. This chapter starts with a description of recent events relating to the present case (I). It
continues with a response to France’s claims regarding the subject-matter of the dispute between
the Parties (II). Section III will demonstrate that Equatorial Guinea’s Application is not abusive
(III). In the final section of the chapter, Equatorial Guinea will show that France’s arguments
largely go to the merits of the case, and that the objections raised by the Respondent are thus not of
a preliminary character (IV).
I. Recent events relating to the case
A. Developments in the criminal proceedings
1.2. Following the hearings on the request for the indication of provisional measures, held
from 17 to 19 October 2016, the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel,
to which the Vice-President of Equatorial Guinea was referred for laundering the proceeds of
misappropriated public funds, breach of trust, misuse of corporate assets and corruption, held its
first hearing on 24 October 2016.
1.3. At the end of that hearing, during which the Vice-President of Equatorial Guinea was
neither present nor represented, the Tribunal correctionnel found that the order for partial dismissal
and partial referral, issued by the investigating judges against the Vice-President on 5 September
2016, did not comply with the provisions of Article 184 of the Code of Criminal Procedure, since it
did not mention the relevant texts that criminalize and punish the offences concerned. The Tribunal
therefore decided to refer the proceedings back to the Public Prosecutor’s Office for resubmission
to the investigating judges so that the order could be regularized, and fixed 2, 4, 5, 9, 11 and
12 January 2017 as the dates for the hearings to examine the merits of the case12.
1.4. On 2 December 2016, the investigating judges signed a new referral order, duly
regularized by reference to the provisions in the French Penal Code and Commercial Code that
criminalize and punish the offences concerned. According to the new referral order, notified to him
on 5 December 2016, the Vice-President was referred before the Paris Tribunal correctionnel
“for having in Paris and on national territory during 1997 and until October 2011 . . .
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, SOCAGE and SOMAGUI FORESTAL in particular”13.
1.5. At the hearing on 2 January 2017, the Vice-President of Equatorial Guinea, who was
absent but represented by his counsel, submitted a request to the Tribunal correctionnel for the
postponement of the hearing on the merits, on the grounds that he had not been granted a
reasonable period of time to prepare his defence since being notified of the referral order on
5 December 2016. He also referred to the fact that the Order indicating provisional measures made
by the Court on 7 December 2016 was such as to make it impossible for the trial to be held, since
the building at 42 avenue Foch housing Equatorial Guinea’s diplomatic mission in France, which
had been attached (saisie pénale) with a view to being confiscated by the French courts, should,
under the Court’s Order, enjoy equivalent treatment to that required by Article 22 of the VCDR.
12 Record of the hearing at the Paris Tribunal correctionnel, 24 Oct. 2016 (Ann. 1).
13 MEG, Ann. 7, p. 35.
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1.6. It appears from the record of the hearing of the Paris Tribunal correctionnel held on
2 January 2017 that the Public Prosecutor and counsel for the civil-party applicant were of the view
that there was no reason to postpone examination of the merits of the case, on the grounds that the
Order indicating provisional measures did not constitute an impediment to further criminal
proceedings.
1.7. In a decision dated 2 January 2017, the Tribunal correctionnel nonetheless postponed
adjudication of the case on the merits until the hearings scheduled for 19, 21, 22, 26, 28 and
29 June and 3, 5 and 6 July 2017, and noted that
“in order to respect the principle of the sound administration of justice, a constitutional
objective which was binding on the judicial authorities, and which also obliged them
to deliver judgment within a reasonable period of time, the Tribunal did not
necessarily intend to await the ICJ’s decision on the merits”14.
1.8. It should be noted that in the meantime, on 12 June 2017, the Malabo Tribunal
d’instruction No. 1, ruling on the predicate offences of misappropriation of public funds,
corruption, breach of trust and misuse of corporate assets allegedly committed 􀁿 according to the
French courts 􀁿 on the territory of Equatorial Guinea, against the State of Equatorial Guinea and
the companies Edum, Socage and Somagui Forestal (all of which are governed by Equatorial
Guinean law and have their headquarters in Equatorial Guinea), found that no offence had been
committed and, in judgment No. 13/2017, declared the acquittal of all the defendants involved15.
That judgment confirms that none of the predicate offences linked to the offence of money
laundering being prosecuted before the French courts was committed in Equatorial Guinea, as the
Public Prosecutor of Equatorial Guinea had previously found in 201016.
1.9. At the opening of the hearing of 19 June 2017 before the Paris Tribunal correctionnel,
the Vice-President of Equatorial Guinea, who was absent but represented by his counsel, raised a
defence in limine litis based on his immunity ratione personae, particularly in light of the fact that
he had been promoted to the post of Vice-President in charge of National Defence and State
Security by decree of the President of the Republic of Equatorial Guinea following the
2016 presidential elections, and that the Government of Equatorial Guinea had not waived his
immunity. In the submissions made on his behalf before the Tribunal, the Vice-President based his
arguments on customary international law, as set out in the jurisprudence of the Court. However,
instead of making a preliminary ruling on that ground, the Tribunal decided to continue the
hearing, joining it to the merits.
1.10. The parties made their cases. The association Transparency International France, a
civil-party applicant, argued that the offences of laundering the proceeds of the misuse of corporate
assets, misappropriation of public funds, breach of trust and corruption, alleged against the
Vice-President of Equatorial Guinea, had occurred. In the view of the civil-party applicant, it made
no difference whether the predicate offences said to have been committed on the territory of
Equatorial Guinea were punishable under the criminal law of that State.
1.11. Transparency International France maintained that the French criminal courts were
fully competent to entertain the offence of money laundering, given that it had been committed in
France, and since it is an autonomous offence. Citing the investigating judges’ referral order and
the case law of the Cour de cassation, Transparency International France argued that the original
offences must be characterized under French law, once again because of the autonomy of the
14 Record of the hearing at the 32nd chambre correctionnelle of the Paris Tribunal correctionnel, 2 Jan. 2017,
p. 11 (Ann. 2).
15 Malabo Tribunal d’instruction No. 1, judgment No. 13/2017 (Ann. 3).
16 MEG, paras. 3.32-3.35 and 6.31-6.35.
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offence of money laundering. In other words, the original act committed abroad must be
characterized as if it had been committed on French territory, and the characterization of the
original act is a matter for French law alone, to the exclusion of the law of the other country.
1.12. With regard to the immunity ratione personae claimed by the Vice-President’s defence
in light of the new functions he has exercised since 2016, Transparency International France
asserted that the judgment of the Cour de cassation of 15 December 201517, which had rejected the
defence based on his function as Second Vice-President in charge of Defence and State Security,
should also apply to his current function as Vice-President. According to Transparency
International, Mr. Teodoro Nguema Obiang Mangue’s situation remains entirely unchanged, since
he is neither a Head of State, a Head of Government nor a Minister for Foreign Affairs, and,
moreover, the offences alleged against him, assuming them to be established, were committed for
personal gain before he took up his current functions, at the time when he was performing the
functions of Minister for Agriculture and Forestry.
1.13. Finally, Transparency International France asked the Tribunal correctionnel to dismiss
the Malabo Tribunal d’instruction’s judgment of 12 June 2017, according to which the predicate
offences presented by the French courts as having been carried out on the territory of Equatorial
Guinea had not been committed.
1.14. In conclusion, Transparency International France asked the Tribunal correctionnel to
order Mr. Teodoro Nguema Obiang Mangue to pay it reparations of €10,000 for the moral harm
and €41,080 for the material harm it had suffered.
1.15. The Tribunal correctionnel allowed a second, newly established association, which has
an exclusively political purpose, to intervene in the hearings as a civil party, notwithstanding an
objection by the Vice-President of Equatorial Guinea’s defence, which strongly protested against
the proceedings being politicized in this way. The association in question is the “Coalition
d’opposition pour la restauration d’un État démocratique pour la République de Guinée
équatoriale” [Opposition Coalition for the Restoration of a Democratic State in Equatorial Guinea]
(hereinafter “CORED”), whose registration was published in the Journal officiel de la République
française on 11 August 2015.
1.16. Contending, in its turn, that the offences alleged against the Vice-President had
occurred, CORED, portraying itself as the representative of the people of Equatorial Guinea, asked
the Tribunal correctionnel to order Mr. Teodoro Nguema Obiang Mangue to pay it €400,001 in
damages and €42,000 in procedural costs.
1.17. It should be noted that the arguments presented before the Tribunal correctionnel did
not address any evidence as to whether Mr. Teodoro Nguema Obiang Mangue was guilty of money
laundering, but focused on criticizing Equatorial Guinea’s political régime.
1.18. Defence for the Vice-President of Equatorial Guinea made the preliminary point, as it
had done at the opening of the trial, that in his capacity as a high-ranking representative of the State
of Equatorial Guinea, the Vice-President in charge of National Defence and State Security should
enjoy immunity from jurisdiction, which applies ratione personae to certain holders of
high-ranking office in a State, before foreign courts, in this instance before the Paris Tribunal
correctionnel. Under the Constitution of Equatorial Guinea, the Vice-President holds the
second-highest office in the State, and the sovereign nature of his functions, including international
representation, is sufficiently well-established. Furthermore, according to the defence, the argument
of immunity is particularly admissible and well-founded since the French Cour de cassation has
not had the opportunity to rule on the immunity attached to Mr. Teodoro Nguema
Obiang Mangue’s current functions.
17 MEG, Ann. 29.
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1.19. The Vice-President’s defence also argued that the judgment of 12 June 2017 of the
Malabo Tribunal d’instruction, having the force of res judicata, is binding on the French courts as
regards the characterization of the original offences of misappropriation of public funds, misuse of
corporate assets, breach of trust and corruption, over which the French courts do not have
jurisdiction. Consequently, money laundering, being a derivative offence, cannot be considered in
these proceedings, since the predicate offences were held not to be established by the courts of
Equatorial Guinea, which has exclusive territorial jurisdiction to deal with them.
1.20. Relying on Articles 4 and 6 of the Palermo Convention, the Vice-President’s defence
recalled, first, that the fight against transnational crime could not be waged to the detriment of the
principle of State sovereignty, and, second, that the same Convention lays down the obligation to
determine whether the acts that may establish the original offences constitute “a criminal offence
under the domestic law of the State where it is committed”.
1.21. Furthermore, according to the Vice-President’s defence, the source of funds used
cannot establish the alleged offences of misuse of corporate assets, passive corruption of a public
official before 14 November 2007, or misappropriation of foreign public funds, since there is no
legal basis for doing so.
1.22. Indeed, the established case law of the French Cour de cassation shows that the
offence of misuse of corporate assets “cannot be extended to companies in respect of which there is
no provision in the law, such as a company incorporated under foreign law”18. Misuse of corporate
assets only applies in the case of companies incorporated under French law. In this instance,
therefore, the offence of laundering the proceeds of misuse of corporate assets to the detriment of
Edum, Socage and Somagui Forestal, all of which are companies incorporated under Equatorial
Guinean law with their headquarters in Equatorial Guinea, cannot be constituted.
1.23. Similarly, the offence of passive corruption of foreign public officials did not exist
before the law of 13 November 2007. Until an anti-corruption law of 30 June 2000, the offence of
passive corruption concerned only French public officials. Consequently, the French courts could
not accuse Mr. Teodoro Nguema Obiang Mangue of the offence of corruption without
contravening Article 7 of the European Convention on Human Rights and Fundamental Freedoms
on the principle of offences and penalties being established in law, which prohibits the extensive
application of criminal law to the detriment of the defendant.
1.24. Finally, the Vice-President’s defence pointed out that the offence of misappropriation
of foreign public funds does not exist in French law: Article 432-15 of the French Penal Code
criminalizes the misappropriation of French public funds, which are clearly not Equatorial Guinean
public funds. Consequently, the offence of laundering misappropriated public funds alleged against
Mr. Teodoro Nguema Obiang Mangue is not legally established.
1.25. At the hearing held before the Tribunal correctionnel on 5 July 2017, the Public
Prosecutor requested not only that the Vice-President be given a term of three years’ imprisonment
and a fine of 30 million euros, but that all the assets purportedly belonging to him should be
confiscated, including the building at 42 avenue Foch housing Equatorial Guinea’s diplomatic
mission in France, which was the subject of the provisional measures indicated by the Court. The
Public Prosecutor did not bring the Order of 7 December 2016 to the attention of the Tribunal
correctionnel.
1.26. The Tribunal correctionnel, having adjourned for deliberation, fixed 27 October 2017
as the date on which it will deliver its judgment.
18 Chambre criminelle of the Cour de cassation, 3 June 2004, No. 03-80.593. [Translation by the Registry].
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B. Diplomatic exchanges
1.27. As France mentioned in its Preliminary Objections, diplomatic exchanges have taken
place between the Parties since the Court made its Order indicating provisional measures on
7 December 201619. Notwithstanding France’s renewed attempt to call into question the good faith
of Equatorial Guinea, these diplomatic exchanges demonstrate the genuine and consistent efforts
made by Equatorial Guinea to find an amicable solution to the present dispute. They also bear
witness to France’s persistent refusal to settle the dispute.
1.28. In January 2017, the President of the Republic of Equatorial Guinea, His Excellency
Mr. Obiang Nguema Mbasogo, held a meeting in Bamako with his French counterpart, His
Excellency Mr. François Hollande, on the margins of the Africa-France summit. The Ministers for
Foreign Affairs of both countries also met.
1.29. Following that meeting, the President of the Republic of Equatorial Guinea sent his
French counterpart a letter dated 19 January 2017, in which he expressed his concern about the
effect that the criminal proceedings in France against the Vice-President might have on the
otherwise excellent bilateral relations between Equatorial Guinea and France. The President of
Equatorial Guinea also restated his willingness to find a diplomatic solution to the dispute between
the two countries20.
1.30. In a letter from the French President dated 16 February 2017, France turned its back on
Equatorial Guinea’s amicable offer21, as it has done in the past. The French President assured his
Equatorial Guinean counterpart of his commitment “to dialogue and co-operation” between the two
countries, “particularly with regard to regional security”, while nonetheless regretting that he was
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” judicial independence. On the
subject of the provisional measures indicated by the Court in the present case, the French President
made a point of providing assurances that France would comply with the Order issued on
7 December 2016.
1.31. On 15 February 2017, before the aforementioned letter from the French President and
after two meetings between the French Foreign Ministry’s Directorate for Africa and the Indian
Ocean and the Ambassador of Equatorial Guinea, at which the situation of the building at
42 avenue Foch in Paris was raised, the Embassy of Equatorial Guinea in France sent a Note
Verbale to the French Ministry of Foreign Affairs seeking to ascertain France’s position on the
Court’s Order indicating provisional measures22.
1.32. In a Note Verbale in response, dated 2 March 2017, the French Ministry of Foreign
Affairs confirmed to the Embassy of Equatorial Guinea in France that, pending a final decision by
the Court, France would ensure that the premises located at 42 avenue Foch received “treatment
equivalent to that required by Article 22 of the Vienna Convention”. However, it also recalled “its
consistent position”, according to which “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”23.
19 POF, para. 85.
20 Letter from the President of Equatorial Guinea to the French President, 19 Jan. 2017 (Ann. 4).
21 Letter from the President of the French Republic to the President of the Republic of Equatorial Guinea, 16 Feb.
2017 (Ann. 5).
22 Note Verbale No. 069/2017 from the Embassy of Equatorial Guinea, 15 Feb. 2017 (Ann. 6).
23 Note Verbale No. 2017-158865 from the French Ministry of Foreign Affairs, 2 Mar. 2017 (Ann. 7).
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1.33. On 12 June 2017, a few days before the criminal proceedings in Paris against the
Vice-President of Equatorial Guinea resumed, the Embassy of Equatorial Guinea in France sent the
French Ministry of Foreign Affairs a Note Verbale in which it raised strong objections to those
proceedings24. The Embassy stated explicitly that the Government of Equatorial Guinea would not
waive the immunity ratione personae of its Vice-President and asked the French Ministry of
Foreign Affairs to bring the Note Verbale to the attention of the competent French courts, in
particular the 32nd Chambre correctionnelle of the Paris Tribunal correctionnel. To date,
Equatorial Guinea has received no reply from France and is unaware of the French Ministry of
Foreign Affairs having forwarded a copy of the Note Verbale to the competent French courts.
1.34. As mentioned in paragraph 1.25 above, at the hearing on the merits held on 5 July 2017
before the Paris Tribunal correctionnel, the Public Prosecutor sought, inter alia, the confiscation of
the building located at 42 avenue Foch in Paris. Faced with this situation, the Embassy of
Equatorial Guinea in France was obliged to send the French Ministry of Foreign Affairs a Note
Verbale of protest on 6 July 2017, recalling the commitment made in writing by the President of
the French Republic, on behalf of France, to comply with the terms of the Court’s Order indicating
provisional measures and to ensure the protection and inviolability of the diplomatic mission25.
France responded by a Note Verbale dated 18 July 201726.
1.35. Equatorial Guinea notes that, according to a judgment of the European Court of Human
Rights, in the French judicial system the Public Prosecutor is among the “members of the ministère
public (prosecuting authorities) who are all under the same hierarchical authority, that of the Garde
des sceaux, the Minister of Justice, who is a member of the Government, and consequently that of
the executive”27.
C. Facts relating to the building at 42 avenue Foch
1.36. In its Preliminary Objections to the jurisdiction of the Court, France addresses the facts
of the case relating to the building at 42 avenue Foch in considerable detail. Although these facts
essentially go to the merits, Equatorial Guinea will provide a brief response to the points made.
France does not dispute that its judicial authorities imposed measures of constraint on the building,
including police raids28, searches29 and attachment30. France does, however, contest the facts
concerning the status of the building. Equatorial Guinea wishes to set the record straight, in view of
a number of inaccuracies that crop up throughout the Respondent’s presentation of those facts. As
will be demonstrated, there is no uncertainty whatsoever about Equatorial Guinea’s position.
1.37. France considers that there is uncertainty about the date on which Equatorial Guinea
acquired rights over the building located at 42 avenue Foch31. However, there is no uncertainty at
all in this matter. Equatorial Guinea has always been consistent in its written pleadings. The Court
may wish here to consult Equatorial Guinea’s Memorial, which reiterates what it stated previously
in its replies to the questions put by Judges Bennouna and Donoghue at the provisional measures
hearings32. By becoming sole shareholder, on 15 September 2011, of the five Swiss companies
24 Note Verbale No. 262/2017 from the Embassy of Equatorial Guinea, 12 June 2017 (Ann. 8).
25 Note Verbale No. 300/2017 from the Embassy of Equatorial Guinea, 6 July 2017 (Ann. 9).
26 Note Verbale No. 2017-465600 from the French Ministry of Foreign Affairs, 18 July 2017 (Ann. 10).
27 ECHR, Moulin v. France, No. 37104/06, Judgment of 23 Nov. 2010, para. 56. [Translation by the Registry].
28 POF, para. 26.
29 Ibid., para. 21.
30 Ibid., paras. 21 and 23.
31 Ibid., paras. 24-26.
32 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016, p. 1;
MEG, paras. 2.12 et seq.
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which had hitherto owned the building located at 42 avenue Foch, Equatorial Guinea acquired
ownership of that building33. The question put by Judge Bennouna, regarding the statement made
by Equatorial Guinea in a Note Verbale of 14 February 2012 that the title to the property was in the
process of being transferred, essentially raised the issue of the transfer of ownership of the
companies undergoing liquidation to the State of Equatorial Guinea. As explained in the reply to
Judge Bennouna, the statement that the title to the property was in the process of being transferred
makes sense only in that context.
1.38. France likes to exaggerate certain facts or describe them in an often simplistic or
inappropriate way. Extracts taken out of context cannot help the Respondent’s case, and will
certainly not enable the truth to be established. In any event, repeated reference to the fact that in a
Note Verbale of 4 October 2011 Equatorial Guinea stated that it had “for a number of years
owned”34 the building at 42 avenue Foch is of little relevance in view of the case against France.
What is significant in this Note Verbale is that Equatorial Guinea sought to notify France that the
building had been assigned as premises of its diplomatic mission.
1.39. To draw an adverse inference from the statement that on 14 February 2012 the title to
the property was in the process of being transferred, whereas Equatorial Guinea had held the right
of ownership of the property since 15 September 2011 as a result of the transfer made between it
and the Swiss companies, is to misunderstand the sequence of events in this case. France has never
contested Equatorial Guinea’s right of ownership of the property35. In stating in the Note Verbale
of 14 February 2012 that the title to the property was in the process of being transferred, Equatorial
Guinea was referring to the fact that, pursuant to paragraph N of the agreement on the transfer of
shares and claims between it and Mr. Teodoro Nguema Obiang Mangue, it was required to
liquidate the five companies in order to register its property title at the Land Registration
Department36. At the present time it is impossible to register that title, due to the registration on
31 July 2012 of the attachment order of 19 July 201237. France’s assertions regarding the Note
Verbale of 14 February 2012 are thus far from being a true reflection of the situation38.
1.40. France creates the same confusion when it claims that there is “uncertainty” about the
use of the building located at 42 avenue Foch as premises of Equatorial Guinea’s diplomatic
mission39. Equatorial Guinea nonetheless clarified the facts of the matter, in response to Judge
Donoghue’s question, on 26 October 2016. Yet France, once again, prefers to be selective by
referring in its Preliminary Objections to facts which appear to support its case, but which actually
distort the truth. Equatorial Guinea has no intention of changing any part of its previous statements
on the subject and kindly asks the Court to refer to its reply to the question put by
Judge Donoghue40.
1.41. As provided in Article 1 (i) of the VCDR, diplomatic premises include buildings “used
for the purposes of the mission”. As shown in Equatorial Guinea’s Memorial and in Chapter 3 of
this Written Statement, the diplomatic status of the building is determined by its use, and this
33 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
para. 3; MEG, para. 2.18.
34 POF, para. 25.
35 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
para. 13.
36 Ibid., para. 15.
37 Ibid., para. 16; MEG, para. 2.28.
38 POF, para. 25.
39 Ibid., paras. 27 et seq.
40 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
paras. 17-32.
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includes the manifest intention to use it for the purposes of the diplomatic mission41. It is for this
reason that Equatorial Guinea replied to Judge Donoghue that the use of the building located at
42 avenue Foch in Paris for diplomatic purposes was established in several stages; first, an
assignment, i.e., its designation for use as premises of the mission, notified to France by the Note
Verbale of 4 October 201142; second, acts of using it for the purposes of the mission, including the
rehousing of the Chargée d’affaires ad interim in the building as from 17 October 201143; and
finally, the gradual relocation of its diplomatic offices to 42 avenue Foch, a move completed on
27 July 2012, as attested by the Note Verbale sent to France on that date44.
1.42. Establishing the premises of a diplomatic mission involves a process. It is true that
Equatorial Guinea gave official notification of the assignment of the building for diplomatic
purposes on 4 October 2011, but that did not prevent it from objecting, as it did, to the intrusions of
28 September and 3 October 2011. That objection simply reflected its decision to use the building
for diplomatic purposes, as also evidenced by the presence of a sign on the building marked
“République de Guinée Équatoriale 􀁿 locaux de l’ambassade” (Republic of Equatorial Guinea 􀁿
Embassy premises)45. Moreover, the representatives of Equatorial Guinea had good cause to
demand respect for the jurisdictional immunity of the State and its property.
1.43. Lastly, the fact that different addresses appeared in the headers and footers of
correspondence or in the curriculum vitae of the Chargée d’affaires ad interim46 cannot be regarded
as decisive in settling the question of the date from which the building was assigned as premises of
the diplomatic mission. Equatorial Guinea cannot see what can be proved by such a frivolous
manner of proceeding, which merely reveals a dearth of convincing arguments. In any event,
irrespective of whether they are significant, these are not preliminary questions, but go to the merits
of the case.
II. The subject-matter of the dispute
1.44. France maintains that Equatorial Guinea’s submissions “go far beyond” the
subject-matter of the dispute as defined in its earlier written pleadings and that “Equatorial Guinea
takes great liberties with the treaties on which it purports to base its claims”47. France’s main line
of argument is that Equatorial Guinea is basing its claims on customary international law/general
international law and not on the specific conventions establishing the jurisdiction of the Court.
Such assertions are wrong. They are a caricature of Equatorial Guinea’s arguments, produced by
means of selective quotations from its written pleadings48.
1.45. France presents the subject-matter of the dispute in a manner at odds with the
jurisprudence of the Court: it does not just look at what is under a single heading or in any specific
extract of an application. In this regard, the Court stated the following in the case concerning
Certain Questions of Mutual Assistance in Criminal Matters:
41 MEG, para. 8.15.
42 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
paras. 21-22 and 24; MEG, paras. 3.55, 4.4 and 8.46.
43 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
para. 25; MEG, paras. 4.9, 4.10 and 8.46.
44 Replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue, 26 Oct. 2016,
para. 29; MEG, paras. 4.25 and 8.48.
45 MEG, para. 8.17.
46 POF, para. 27.
47 Ibid., para. 44.
48 For example, by quoting only the introductory summary of the dispute in paragraph 2 of Equatorial Guinea’s
Application (POF, para. 42).
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“France has taken the view that it has only accepted the Court’s jurisdiction
over the stated subject-matter of the case which is to be found, and only to be found,
in paragraph 2 of the Application, under the heading ‘Subject of the dispute’. So far as
the question of identifying the subject-matter of the dispute is concerned, while indeed
it is desirable that what the Applicant regards as the subject-matter of the dispute is
specified under that heading in the Application, nonetheless, the Court must look at
the application as a whole.”49
1.46. In the Fisheries Jurisdiction case, the Court also stated that:
“There is no doubt that it is for the Applicant, in its Application, to present to
the Court the dispute with which it wishes to seise the Court and to set out the claims
which it is submitting to it . . .
In order to identify its task in any proceedings instituted by one State against
another, the Court must begin by examining the Application . . . However, it may
happen that uncertainties or disagreements arise with regard to the real subject of the
dispute with which the Court has been seised, or to the exact nature of the claims
submitted to it. In such cases, the Court cannot be restricted to a consideration of the
terms of the Application alone nor, more generally, can it regard itself as bound by the
claims of the Applicant . . .
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 will itself determine the real dispute that has been submitted to it . . .
It will base itself not only on the Application and final submissions, but on diplomatic
exchanges, public statements and other pertinent evidence . . .”50
1.47. In the latter case, which was then at the preliminary objections stage, as this one is, the
Court ruled that it “w[ould] ascertain the dispute between Spain and Canada, taking account of
Spain’s Application, as well as the various written and oral pleadings placed before the Court by
the Parties”51. Consequently, even assuming that Equatorial Guinea might have gone beyond the
subject-matter of the dispute in the wording of its submissions in the earlier proceedings, this
would not be fatal to establishing the Court’s jurisdiction. In the circumstances of the present case,
once the question of its jurisdiction is settled, the Court is called upon to make a decision on the
whole of the dispute between Equatorial Guinea and France and not just part of it.
1.48. Furthermore, France does not cite the parts of Equatorial Guinea’s Application that
describe the subject-matter of the dispute correctly. The paragraphs of the relevant section in the
Application read 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
houses the Embassy of Equatorial Guinea, both as premises of the diplomatic mission
and as State property.
49 Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v. France), Judgment, I.C.J.
Reports 2008, p. 177, para. 67.
50 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432,
paras. 29-31 (references omitted in the quotation).
51 Ibid., para. 33.
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The criminal proceedings against the Second Vice-President constitute a
violation of the immunity to which he is entitled under international law and interfere
with the exercise of his official functions as a holder of high-ranking office in the
State of Equatorial Guinea. To date, these proceedings have also resulted, inter alia, in
the attachment of the building located at 42 avenue Foch in Paris, which is the
property of Equatorial Guinea and used for the purposes of its diplomatic mission in
France. These proceedings violate the Vienna Convention on Diplomatic Relations of
18 April 1961, the United Nations Convention against Transnational Organized Crime
of 15 November 2000, and general international law.”52
1.49. Similarly, in its Request for the indication of provisional measure, Equatorial Guinea
describes the subject-matter of the dispute between the Parties in the following terms:
“The rights of Equatorial Guinea that form the subject of the dispute are as
follows: its right to sovereign equality, including the right to respect for the immunity
from foreign criminal jurisdiction enjoyed by its Vice-President, as well as the
immunity of its property; its right to non-intervention in its internal affairs; and its
right to the inviolability, protection and dignity of its diplomatic mission in France.
The personal immunity of the Vice-President and the inviolability of the building
located at 42 avenue Foch in Paris, the subject of this request for the indication of
provisional measures, derive from the principles of the sovereign equality of States
and non-interference in States’ internal affairs, which are fundamental principles of
the international legal order and to which reference is explicitly made in the Palermo
Convention. The immunity and inviolability of the diplomatic mission are
well-established in customary international law, as codified by the Vienna Convention
on Diplomatic Relations.”53
1.50. The lengthy arguments in paragraphs 42 to 57 of the Preliminary Objections 􀁿 in
which France contends that what Equatorial Guinea seeks in its submissions goes beyond the
subject-matter of the dispute 􀁿 fail to shed any light on the question of jurisdiction which they
raise. Assessing the scope of submissions is ultimately a matter for the merits, to be addressed once
the jurisdiction of the Court has been established. Contrary to what France appears to believe, the
description of the subject-matter of the dispute in the application instituting proceedings, although
an essential requirement laid down in the Court’s basic texts54, does not confine the applicant to
what is contained in the said application. It very often falls to the Court to determine what the
subject-matter is.
1.51. It is clear from all of Equatorial Guinea’s written pleadings that the present dispute
concerns Frances’s violations of the Palermo Convention and the VCDR. The questions relating to
the immunity ratione personae of the Vice-President of Equatorial Guinea in charge of National
Defence and State Security, and the legal status and inviolability of the building which houses that
country’s diplomatic mission in France, form an integral part of this dispute.
1.52. In its Memorial, Equatorial Guinea also founded the Court’s jurisdiction on specific
conventional provisions. In this regard, it writes:
“The Court has jurisdiction in the present case both under Article 35 of the
United Nations Convention against Transnational Organized Crime, adopted by the
United Nations General Assembly on 15 November 2000 . . . and under the provisions
52 Application instituting proceedings submitted by Equatorial Guinea, 13 June 2016 (hereinafter “AEG”),
paras. 1-3. See also MEG, para. 0.2.
53 Request for the indication of provisional measures submitted by Equatorial Guinea (hereinafter “RPMEG”),
29 Sep. 2016, para. 13.
54 Statute of the Court, Art. 40; Rules of Court, Art. 38.
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of the Optional Protocol to the Vienna Convention on Diplomatic Relations,
concerning the Compulsory Settlement of Disputes, done at Vienna on 18 April
1961 . . .”55
1.53. These bases of jurisdiction are identical in every respect to those invoked by Equatorial
Guinea in support of its Application56 and its request for the indication of provisional measures57.
In its Order of 7 December 2016 on that request, the Court refers to the same bases of jurisdiction
in the following terms:
“In its Application, Equatorial Guinea seeks to found the Court’s jurisdiction,
first, on the Optional Protocol concerning the Compulsory Settlement of Disputes to
the Vienna Convention on Diplomatic Relations of 18 April 1961 . . . and, second, on
Article 35 of the United Nations Convention against Transnational Organized Crime
of 15 November 2000.”58
1.54. France devoted a great deal of space in its Preliminary Objections to either stating the
obvious or misrepresenting Equatorial Guinea’s arguments regarding the bases of jurisdiction59. To
support its reasoning, it quotes extracts from Equatorial Guinea’s Application and Memorial, in
which it highlights 􀁿 through the use of italics 􀁿 the terms “general international law” and
“customary international law”60, in order to claim that Equatorial Guinea “seeks to establish its case
on principles of general international law rather than on treaty bases”61.
1.55. However, as is clear from Equatorial Guinea’s Memorial and its oral arguments at the
provisional measures hearings, general international law/customary international law is mentioned
only in so far as it is incorporated in the Palermo Convention62 and reflected in the VCDR.
Equatorial Guinea does not therefore take any “liberties” with those treaties in order to provide a
basis for its claims.
1.56. Of course, as the Court states, a dispute does not exist simply because one party
invokes the application of a convention and the other refutes it. In the Order of 7 December 2016,
the Court holds that in order to determine whether a dispute exists between the Parties concerning
the conventions invoked by Equatorial Guinea, “[i]t must ascertain whether the acts complained of
by Equatorial Guinea are prima facie capable of falling within the provisions”63 of those
conventions. Equatorial Guinea will return to this point later in its Written Statement, in order to
demonstrate that the Court has jurisdiction to entertain the dispute under the Palermo Convention
and the VCDR.
1.57. Despite France’s efforts to prove the contrary, there is indeed a dispute between
Equatorial Guinea and France regarding the interpretation and application of the VCDR, including
Article 1 (i) and Article 22 thereof. As consistently maintained by Equatorial Guinea, this dispute
concerns not only Article 1 (i) and Article 22 of the VCDR, but other provisions of the Convention
55 MEG, para. 5.1.
56 AEG, paras. 4-10.
57 RPMEG, para. 5.
58 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 Dec. 2016, para. 3.
59 POF, para. 48.
60 Ibid., paras. 49-52.
61 Ibid., para. 48.
62 MEG, paras. 5.10 and 5.13; CR 2016/16, p. 11, para. 13 (Wood).
63 Immunities and criminal proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 Dec. 2016, para. 47.
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as well. The question of whether premises constitute “premises of the mission” is also relevant
when it comes to applying provisions such as Article 20 (flag and emblem of the sending State),
Article 21 (facilitation of the acquisition of premises) and Article 23 (exemption from taxes).
At this stage, however, the most important issue, and Equatorial Guinea’s main concern, is the
flagrant violation of Article 22 of the Convention.
1.58. The passage in Equatorial Guinea’s Memorial cited by France in paragraph 129 of its
Preliminary Objections establishes clearly that there is a dispute regarding the interpretation and
application of the provisions of the VCDR between the two Parties. Contrary to what France
maintains, Equatorial Guinea does not confine itself to making “bald, unsubstantiated assertions”64.
It invokes the relevant conventional provisions, whose interpretation and application have given
rise to the dispute between the two Parties. That is what is required of a party seising the Court on
the basis of a compromissory clause, as is the case here.
1.59. In France’s view, the dispute “in fact” relates to what it says is a preliminary question:
that of “whether, at the time of the events of which Equatorial Guinea complains in its Application,
th[e] building [at 42 avenue Foch] should — or should not — have been regarded as being used for
the purposes of Equatorial Guinea’s mission in France”65. It also contends that even if the Court
were to accept that it had jurisdiction on the basis of the VCDR, that jurisdiction would 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”66.
1.60. In Equatorial Guinea’s view, there is no preliminary question regarding the status of
the premises housing its diplomatic offices that could be taken in isolation from the relevant
provisions of the VCDR. Article 1 (i) of the VCDR provides:
“For the purpose of the present Convention, the following expressions shall
have the meanings hereunder assigned to them:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.”67
1.61. This provision does not explicitly lay down the procedure for establishing premises of
a diplomatic mission. Practice thus varies from State to State. There is no basis for a receiving State
to establish a specific procedure unilaterally. On the other hand, this provision may be understood
as entitling the sending State to provide its own definition of the premises of its diplomatic mission.
That is the practice followed by many States, in instances where there is no legislation or any other
specific regulations in this area. And that is precisely the case in France, unlike the United
Kingdom, for example, whose legislation in this regard France was eager to cite, while omitting,
however, to cite its own.
1.62. France refers to its “constant practice”68 in this area, without providing any examples.
Rather than constant practice, a singular practice appears to be followed in respect of Equatorial
Guinea alone; it is thus an arbitrary and discriminatory practice that is contrary to Article 47,
paragraph 1, of the VCDR. What is more, this is a recent discriminatory practice, which was not
64 POF, para. 129.
65 Ibid., para. 137.
66 Ibid., para. 138.
67 VCDR, Article 1 (i).
68 POF, para. 167.
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applied when the previous premises of Equatorial Guinea’s mission in Paris were established.
The discriminatory nature of this practice is therefore aggravated by its ad hoc character.
Moreover, France’s assertion that the building at 42 avenue Foch does not have diplomatic status is
directly contradicted by the conduct of many French officials who have made regular visits there to
obtain permission to enter Equatorial Guinea.
1.63. In Equatorial Guinea’s view, Article 1 (i) of the VCDR establishes that the premises
used for diplomatic services are those that are designated as such by the sending State to the
receiving State. France, however, maintains 􀁿 though this is not supported by its “practice”,
except in the circumstances of the present case 􀁿 that the status of a sending State’s diplomatic
premises is not covered by the provisions of Article 1 (i) or Article 22 of the VCDR, and that it is
for the receiving State alone to establish the procedure to be followed by the sending State to obtain
such a status for its diplomatic premises. There is thus undeniably a dispute between the Parties
over the interpretation of Article 1 (i) of the VCDR.
1.64. As regards Article 22, the dispute concerns its application to the premises used by
Equatorial Guinea for its diplomatic services. France contends that “the question of determining the
legal status — or the diplomatic purpose — of a building for the purposes of the Vienna
Convention is not settled by the Convention”69. Yet contrary to France’s assertion, this question
does not remain outside its scope70. In so far as it determines the very application of the
Convention, it is closely connected to it, and consequently any dispute over that question is
necessarily a dispute relating to the application of the Convention.
1.65. As Equatorial Guinea has shown in its written pleadings, there is also a dispute over the
interpretation and application of the Palermo Convention. Equatorial Guinea’s claims in this case
concerning the immunity ratione personae of its Vice-President in charge of National Defence and
State Security, and the immunity from measures of execution of its State property, are based on the
law of treaties, and, in particular, on the obligation incumbent upon France, under Article 4 of the
Palermo Convention, to respect the principles of equality of States and non-intervention when
performing its other obligations under the Convention. France itself does not disagree with this71.
However, it draws attention to various references to customary international law made in
Equatorial Guinea’s written and oral pleadings72. As will be shown in Chapter 2, there is a reason
for those references: the relevant provisions of customary international law in this area have
become treaty obligations, and the Court has jurisdiction to determine whether they have been
breached in the application of the Palermo Convention.
1.66. In conclusion, while inviting the Court to determine the subject-matter of the dispute in
the light of its Application instituting proceedings and its final submissions, as well as in the light
of diplomatic exchanges and public statements, Equatorial Guinea contends that there is a dispute
between the Parties concerning the interpretation and application of the Palermo Convention and
the VCDR, and that, consequently, the Court has jurisdiction to rule on Equatorial Guinea’s
Application.
III. The so-called “abusive nature” of Equatorial Guinea’s Application
1.67. In its Preliminary Objections, France argues, as it did at the time of the request for the
indication of provisional measures73, that Equatorial Guinea’s referral of the present dispute for
69 POF, para. 162.
70 Ibid.
71 Ibid., para. 63.
72 Ibid., paras. 42 et seq.
73 In its Order of 7 December 2016, the Court unanimously rejected France’s request to have the case removed
from the General List.
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settlement by the Court is “abusive”74. In particular, it claims that Equatorial Guinea’s Application
is, first, an “abuse of process” aimed at circumventing the requirement for consent to the Court’s
jurisdiction (A), and, second, an attempt to consolidate an abuse of rights (B).
1.68. A general, preliminary observation must be made here. Having conceded that there is
indeed a dispute between it and Equatorial Guinea75, France has seen fit to use the word “abusive”
in widely varying contexts, with a view to preventing the Court from performing its judicial
functions. Explicitly or implicitly, it has impugned Equatorial Guinea’s motives. Such assertions
are not merely unexpected and inappropriate in diplomatic relations; they also run counter to the
fundamental principle that bad faith is not to be presumed76. In any event, they are blatantly
contradicted by the facts.
A. There is no abuse of process by Equatorial Guinea
1.69. France puts forward a variety of arguments in its attempt to demonstrate that Equatorial
Guinea’s efforts to resolve the present dispute constitute an “abuse of process”. It states that
Equatorial Guinea’s arguments in respect of the Court’s jurisdiction are very brief; that Equatorial
Guinea relies on customary international law or the Court’s jurisprudence to establish its
jurisdiction; that Equatorial Guinea’s reliance on the Palermo Convention and the VCDR is not
legitimate; and that referral to the Court should not be used as a means of terminating the criminal
proceedings against the Vice-President of Equatorial Guinea. Each and every one of these
arguments is wholly unfounded. In fact, presenting such arguments could in itself be considered an
abuse of process.
1.70. France starts by accusing Equatorial Guinea of being “particularly cursory” and even
“evasive” with regard to the bases of jurisdiction it invokes in this case77. It is hardly necessary to
respond to those criticisms. Equatorial Guinea’s pleadings are entirely clear and require no further
explanation. The two bases of jurisdiction relied upon were clearly addressed both in Equatorial
Guinea’s Application and in its Memorial. In any event, Equatorial Guinea could not have been
expected to respond to arguments which, up until now, had not been set out in detail by France. It is
precisely for this reason that the incidental proceedings of preliminary objections exist. Equatorial
Guinea is delighted to have the opportunity to recall what it had considered to be obvious: the
Palermo Convention78 and the Optional Protocol79 confer jurisdiction on the Court to rule on the
violations of international law committed by France and to determine the consequences of that
unlawful conduct.
1.71. France goes on to argue that, apart from the question of the diplomatic status of the
building located at 42 avenue Foch in Paris, Equatorial Guinea’s claims are based solely on
customary international law80. This is not true. As recalled in the previous section, Equatorial
Guinea is not basing itself directly on customary international law; it is relevant in so far as it is
incorporated in the Palermo Convention and reflected in the VCDR. Equatorial Guinea also
explained this point at the hearings on the request for provisional measures:
74 POF, Chap. 1, Sec. III.
75 Ibid., para. 64.
76 Certain German interests in Polish Upper Silesia, Judgment, 1926. P.C.I.J., Series A, No. 7, p. 30. See also
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267,
para. 150; Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of
a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 717,
para. 141.
77 POF, paras. 60-61.
78 See Chap. 2 below.
79 See Chap. 3 below.
80 POF, para. 62.
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“At no time did we suggest that there was jurisdiction over questions of general
or customary international law except in so far as such jurisdiction flowed from the
two treaties we actually relied upon: the Palermo Convention and the Optional
Protocol to the Vienna Convention.”81
1.72. To contend that Equatorial Guinea is relying on certain cases previously brought before
the Court (those concerning the Arrest Warrant, Certain Questions of Mutual Assistance in
Criminal Matters and Jurisdictional Immunities of the State) to support its own arguments
regarding the Court’s jurisdiction82 is entirely irrelevant. Equatorial Guinea in no way refers to
those cases in connection with the question of jurisdiction; rather, it relies on the statements of law
found within them.
1.73. Even more surprising is France’s claim that Equatorial Guinea’s reliance on the
Palermo Convention and the Optional Protocol as bases of jurisdiction should be described as an
abuse of process, because France declined to accept the jurisdiction of the Court on the basis of
forum prorogatum in 201283. First and foremost, it is established jurisprudence that seising the
Court, even immediately after accepting its jurisdiction, does not constitute an abuse of process 84.
The description of Equatorial Guinea’s accession to the Optional Protocol as part of a “strategy” to
circumvent the lack of consent in 201285 is therefore of no relevance. The same applies to the other
argument put forward by France, according to which the Palermo Convention was already
applicable between the Parties in 2012 and Equatorial Guinea failed to invoke it86. There may be a
number of reasons why a State relies on a basis of jurisdiction on one occasion and not on another.
In any event, a State cannot be criticized for doing so at a later stage, since under international law
there is no limitation period for invoking bases of jurisdiction. Furthermore, it is to be recalled that
France itself, in 2013, made it clear that the actions taken against the Vice-President of Equatorial
Guinea and that country’s Embassy in Paris were carried out on the basis of the Palermo
Convention, when it invoked the latter in its letter rogatory of 14 November of that same year87. As
a more general point, seeking to dissuade a State from settling a dispute by judicial means, and
accusing it of abuse and bad faith in seising the Court, is most regrettable conduct.
1.74. France, moreover, accuses Equatorial Guinea of using the Court as a means to obstruct
the criminal proceedings brought before the French courts against its Vice-President88. Yet that is a
perfectly legitimate way of using the Court, when a State considers that a foreign court is
exercising its jurisdiction in a manner contrary to international law. A number of cases have been
brought before the Court for the same purpose (that of ending or suspending judicial proceedings
instituted in violation of international law)89.
81 CR 2016/16, p. 10, para. 10 (Wood).
82 POF, para. 65.
83 Ibid., paras. 70-72.
84 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 275, paras. 22-40; see also Right of Passage over Indian Territory (Preliminary Objections), Judgment,
I.C.J. Reports 1957, p. 147; Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, I.C.J.
Reports 1961, p. 31; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, para. 45.
85 POF, para. 70.
86 Ibid., para. 72.
87 MEG, paras. 3.47-3.48.
88 POF, paras. 73-74.
89 See, for example, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) or Jadhav Case
(India v. Pakistan).
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1.75. In any event, as a renowned public law specialist wrote recently, abuse of process “is a
dangerous concept because it limits the exercise of subjective rights grounded in positive law”90. In
this case, Equatorial Guinea has had recourse to dispute settlement procedures in good faith and in
accordance with the conditions and requirements of the conventions on which it bases the Court’s
jurisdiction. Any claim that the Application is “completely artificial”91 is entirely unfounded and
must be rejected.
B. There is no abuse of rights by Equatorial Guinea
1.76. France has also asserted that Equatorial Guinea’s Application constitutes an abuse of
rights, on the grounds that it was not entitled to require the immunities in question to be
respected92. However, it is clear that the question of whether Equatorial Guinea enjoys such rights
goes to the merits of this case. Similarly, any allegation that Equatorial Guinea may have acted
improperly in seeking to defend the rights conferred on it by international law 􀁿 which Equatorial
Guinea vehemently refutes 􀁿 raises issues pertaining to the merits that cannot be addressed in
these incidental proceedings93.
1.77. Having failed to convince the Court at the provisional measures stage that Equatorial
Guinea’s efforts to ensure respect for the immunities afforded to its Vice-President and the building
housing its Embassy in Paris are abusive, France has once again given a partial and manipulative
portrayal of the facts. In the final analysis, France’s assertion that Equatorial Guinea is seeking to
abuse its rights is not supported by the slightest evidence. The facts presented by France itself show
that Equatorial Guinea has acted reasonably and in accordance with international law, and that it
has been tireless in seeking a solution to the dispute without aggravating it in a way that might
affect bilateral relations between the two States.
1.78. France argues that flagrant abuse of the privileges and immunities granted by
international law could lead to the very existence of those fundamental rights being called into
question94. The same argument could be put forward when the legitimate exercise of privileges and
immunities is challenged by the authorities of a foreign State in a conflictual way, particularly if
the exercise of those privileges and immunities is subject to examination by the courts of that State.
As the Court of Appeal of England and Wales recently noted, “[t]here is no support in the relevant
international instruments or the case law for a functional review by a court where there is a
challenge to a claim to immunity by a diplomat or Permanent Representative”95. While the claim to
immunity might turn out to be unjustified in the light of the circumstances and facts of the case in
question,
“it is not envisaged that the correct response to such a situation is for the domestic
courts to look behind the status of the representative. The decision whether or not to
waive the immunity is a matter which is solely within the executive discretion of the
sending State or the courts of the sending State.”96
90 H. Ascensio, “Abuse of Process in International Investment Arbitration”, Chinese Journal of International
Law, Vol. 13, 2014, p. 785.
91 POF, para. 59.
92 Ibid., para. 76.
93 Ambatielos Case (Greece v. United Kingdom), Jurisdiction, Judgment, I.C.J. Reports 1952, p. 39.
94 POF, para. 78.
95 Estrada v. Juffali (Secretary of State for Foreign and Commonwealth Affairs intervening), [2016] EWCA
Civ 176 (22 Mar. 2016), para. 25 (available at: https://www.judiciary.gov.uk/wp-content/uploads/2016/03/
approved_judgment_rhd_estrada_v_juffali.pdf).
96 Ibid., para. 26 (referring, in particular, to the privileges and immunities laid down in the United Nations
Convention on the Privileges and Immunities of the Specialized Agencies).
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That reasoning should also have guided France, when it considered the immunities of Equatorial
Guinea in the person of its Vice-President and in respect of the building housing its Embassy
in Paris.
1.79. Finally, it is to be recalled that France did not raise any preliminary objections
regarding the admissibility of Equatorial Guinea’s Application. Even if such objections had been
raised, however, the arguments presented by France would not be able to support them. As the
Court held in the case concerning Maritime Delimitation in the Indian Ocean, “there is no need for
the Court to address the more general question whether there are situations in which the conduct of
an applicant would be of such a character to render its application inadmissible”97.
1.80. In conclusion, France’s argument that Equatorial Guinea’s Application is abusive is
unfounded. There is no impediment to the Court’s jurisdiction in this respect.
IV. France raises questions pertaining to the merits to conclude
that the Court lacks jurisdiction
1.81. France has repeatedly gone beyond the inherent bounds of these incidental
proceedings.
1.82. Although on the face of it France has confined itself to raising objections to the Court’s
jurisdiction, its written pleadings very often go beyond the issue of jurisdiction and touch on the
merits of the case. The Rules of Court are nonetheless clear:
“4. The preliminary objection shall set out the facts and the law on which the
objection is based, the submissions and a list of the documents in support . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[7]. The statements of facts and law in the pleadings referred to in paragraphs 4 and 5
of this Article, and the statements and evidence presented at the hearings
contemplated by paragraph 6, shall be confined to those matters that are relevant
to the objection.”98
1.83. As recalled above, France considers that there is, for example, uncertainty about the
date on which Equatorial Guinea acquired ownership of the building located at 42 avenue Foch99,
and the date on which that building was assigned for the purposes of Equatorial Guinea’s
diplomatic mission in France100; it also takes the view that its domestic law is in line with the
Palermo Convention101; and that “[t]he criminal proceedings that were instituted do not . . . involve
an extraterritorial extension of the jurisdiction of the French courts”102. These arguments, among
others, in fact go to the merits of this dispute. They are therefore not relevant at this stage in the
proceedings.
97 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment,
2 Feb. 2017, para. 143.
98 Rules of Court, Art. 79, paras. 4 and [7] (emphasis added).
99 POF, paras. 24-26.
100 Ibid., paras. 27-29.
101 Ibid., paras. 111, 116, 117 and 125.
102 Ibid., para. 18.
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CHAPTER 2
THE COURT’S JURISDICTION ON THE BASIS OF THE UNITED NATIONS CONVENTION AGAINST
TRANSNATIONAL ORGANIZED CRIME
2.1. In its Preliminary Objections, France contends that the Court lacks jurisdiction under the
Palermo Convention to entertain the present dispute103. This chapter will show that, contrary to the
Respondent’s assertions, the Court does have jurisdiction on the basis of Article 35, paragraph 2, of
the Convention, since the dispute between the Parties indeed relates to the interpretation and
application of the Convention, in particular the interpretation and application of Article 4 thereof,
entitled “Protection of sovereignty”.
2.2. Equatorial Guinea notes, first of all, that France’s arguments are largely based on the
Court’s Order indicating provisional measures of 7 December 2016104. As expressly recalled in that
Order, however, the Court’s decision “in no way prejudges the question of the jurisdiction of the
Court to deal with the merits of the case”105.
2.3. The central part of the Court’s reasoning with regard to its jurisdiction on the basis of
the Palermo Convention can be found in paragraph 49 of the Order of 7 December 2016. Equatorial
Guinea agrees in part with what is stated in that paragraph, notably the following:
􀁿 “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.”
􀁿 “[A]ny 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.”106
2.4. For the reasons set out in this chapter, the dispute between Equatorial Guinea and France
relates to the manner in which the latter has carried out its obligations under the Palermo
Convention. The dispute concerns whether France has performed a number of its obligations under
the Convention — in particular those deriving from Articles 6, 11, 12, 14, 15 and 18 — in
accordance with the principles of sovereign equality and non-intervention set out in Article 4 of the
Convention. There can be no doubt that the rules relating to the jurisdictional immunities of States,
including the immunity of certain holders of high-ranking office in a State and the immunity from
execution of State property — régimes which are relevant to this case — flow directly from these
principles107. Therefore, they must be respected under Article 4 of the Convention.
2.5. Furthermore, France’s arguments regarding the Court’s jurisdiction on the basis of the
Palermo Convention raise complex legal and factual questions — several of which are closely
connected in substance — that may be difficult to address at the preliminary objections stage.
103 POF, paras. 89-127.
104 Ibid., paras. 91, 99 and 105.
105 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 98.
106 Ibid., para. 49.
107 Ibid., separate opinion of Judge Xue, paras. 4-7; separate opinion of Judge ad hoc Kateka, paras. 3-22.
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2.6. Equatorial Guinea will begin by responding to the arguments put forward by France in
respect of Article 4 of the Convention (I). It will then consider the relationship between the dispute
and the other relevant provisions of the Convention, and will set out which of the Convention’s
obligations, in its view, France has failed to carry out in a manner consistent with the principles of
sovereign equality and non-intervention, including the rules relating to the immunities of States
deriving therefrom (II).
I. The obligation pursuant to Article 4 of the Palermo Convention to carry out the obligations
under the Convention in a manner consistent with the principles
of sovereign equality and non-intervention
2.7. In its Preliminary Objections, France sets out some brief arguments regarding Article 4
of the Palermo Convention108. Equatorial Guinea notes as a general point that these arguments are
almost identical to those presented by the Respondent at the hearings on the request for provisional
measures109. France has thus made no attempt to address all the arguments put forward in respect of
this provision of the Convention in Equatorial Guinea’s Memorial110.
2.8. Equatorial Guinea further notes that France does not dispute that the principles of
sovereign equality and non-intervention, which must be respected pursuant to Article 4 of
Convention, incorporate important rules of customary international law, and in particular those
relating to the immunities of States111. Article 4 provides:
“Article 4. Protection of sovereignty
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.”
2.9. France’s main argument consists in claiming that Article 4 of the Palermo Convention
does not constitute an “independent obligation”, and is not intended to organize, in a general way,
the legal relations between States. According to France, Equatorial Guinea:
“contends that Article 4 contains an ‘independent obligation’ to comply with
customary international law in general. 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, thereof”112.
2.10. France misrepresents the arguments put forward by Equatorial Guinea. Equatorial
Guinea has never claimed that Article 4 imposes an “independent obligation” in the sense that its
purpose is to organize, in a general way, the legal relations between States, in light of the principles
of sovereign equality and non-intervention and the rules relating to the immunities of States which
derive from them. Quite the contrary, its constant position is that Article 4 imposes an obligation to
respect those principles when applying the Palermo Convention.
108 POF, paras. 94-103.
109 CR 2016/15, pp. 21-22, para. 12 (Pellet); CR 2016/17, pp. 9-10, para. 6 (Pellet).
110 MEG, paras. 5.9-5.26.
111 Ibid., paras. 5.13-5.16. See also Immunities and Criminal Proceedings (Equatorial Guinea v. France),
Provisional Measures, Order of 7 Dec. 2016, declaration of Judge Gevorgian.
112 POF, para. 98. See also paras. 95 and 96.
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2.11. During the hearings on the request for provisional measures, Equatorial Guinea
explained that:
“Article 4 of the Palermo Convention requires States to respect the rules
concerning the immunities to which States are entitled before foreign courts when
applying the Palermo Convention. Being embodied in the principle of sovereign
equality, the rules concerning the immunities to which States are entitled before
foreign courts are binding on States when applying the Palermo Convention.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Palermo Convention does not oblige States to respect the principles of
sovereign equality and non-intervention generally; it imposes on them the obligation
to respect those principles when applying the Convention. This is to ensure that no
disturbance would be caused to international relations as a result of implementing the
Convention; in other words, to prevent precisely a situation such as the one that has
compelled Equatorial Guinea to turn to this Court.”113
2.12. In its Order of 7 December 2016, the Court described Equatorial Guinea’s position as
follows:
“According to Equatorial Guinea, Article 4 of the Convention is not merely a
‘general guideline’, in light of which the other provisions of the Convention should be
interpreted. The principles of sovereign equality and non-intervention to which that
Article refers encompass important rules of customary or general international law, in
particular those relating to the immunities of States and the immunity of certain
holders of high-ranking office in the State. In the Applicant’s view, the rules in
question are binding on States when they apply the Convention as they are embodied
in the above-mentioned principles.”114
2.13. Finally, in its Memorial, Equatorial Guinea argued that:
“In performing its obligations under the Palermo Convention, each State party
is bound to respect the principle of sovereign equality, including the rules of
immunity. The dispute between Equatorial Guinea and France concerning the criminal
proceedings against Mr. Teodoro Nguema Obiang Mangue, and the dispute
concerning the status of the building located at 42 avenue Foch in Paris as State
property used or intended for use by the State for government non-commercial
purposes, are disputes which raise the question of whether France has complied with
Article 4 of the Convention. The answer to this question depends on the interpretation
and application of Article 4, read in conjunction with other provisions of the
Convention . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article 4 of the Palermo Convention does not require respect for the principles
of sovereign equality and non-intervention, or the rule of State immunity which flows
from them, in a general sense. That is a treaty obligation only in terms of the
application of the Convention.”115
113 CR 2016/16, pp. 12-13, paras. 15 and 17 (Wood) (emphasis added).
114 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 43 (emphasis added).
115 MEG, paras. 5.10 and 5.27 (emphasis added).
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2.14. In short, Equatorial Guinea is of the view that Article 4 of the Palermo Convention
does impose an obligation on its State parties. Contrary to France’s assertions, however, it does not
attempt to dissociate Article 4 from the Convention’s other provisions116.
2.15. The use of the expression “independent obligation” in Equatorial Guinea’s Memorial117
is intended to draw attention to the legally binding nature of Article 4 of the Convention, in
response to France’s argument during the hearings on the request for provisional measures that this
provision is merely a “general guideline”. In its Preliminary Objections, France once again cites the
Oil Platforms case118 to support its argument, and yet it has made no attempt to respond to
Equatorial Guinea’s arguments regarding the relevance of that case to the present dispute119.
Article 1 of the 1955 Treaty of Amity and Article 4 of the Palermo Convention are very different,
and the Court’s reasoning in the above-mentioned case is not applicable here.
2.16. It should be recalled that in its Order of 7 December 2016, the Court recognized
Article 4 as establishing an obligation concerning the way in which States carry out their
obligations under the Palermo Convention. The Court determined that:
“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.”120
2.17. Since such a dispute may arise, it cannot be argued that Article 4 of the Palermo
Convention is merely a “general guideline”. Respecting the principles of sovereign equality and
non-intervention when applying the other provisions of the Palermo Convention is a treaty
obligation.
2.18. France further claims that Equatorial Guinea maintains confusion between the
obligations set out in the Palermo Convention and the manner in which they must be performed121.
But there is in fact no confusion. The obligation contained in Article 4 specifically concerns the
manner in which States carry out their other obligations under the Convention, as noted by the
Court in its Order of 7 December 2016122. This must not be interpreted in a restrictive manner.
There may be situations in which Article 4 of the Convention requires States to refrain from
performing what would otherwise be an obligation under the Convention.
2.19. The consequence of this is simple: when prosecuting certain offences pursuant to the
Convention, France must respect the principles of sovereign equality and non-intervention. When
incorporating certain provisions into its domestic law to give effect to the Convention, the
provisions it adopts must respect those principles both formally and in practice. In order to adhere
to the obligations concerning co-operation between States, such co-operation must be carried out in
a manner consistent with those same principles. In short, when France performs each of the
obligations under the Convention, it must respect the principles of sovereign equality and
non-intervention and, if necessary, refrain from performing those obligations if doing so risks
116 POF, para. 106.
117 MEG, para. 5.18.
118 POF, para. 99.
119 MEG, paras. 5.14, 5.17 and 5.18; CR 2016/16, p. 12, para. 16 (Wood).
120 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 Dec. 2016, para. 49.
121 POF, para. 98.
122 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 49.
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infringing the principles of sovereign equality and non-intervention. These principles constitute a
“legal framework within which the other provisions are to be implemented.”123
2.20. This obligation is nothing out of the ordinary. Unless there is a clear indication to the
contrary, States are always required to respect the fundamental principles of international law when
applying a treaty. As France stated, this obligation is enforceable even if it is not expressly
provided for124. But when a treaty does make such a provision (as does Article 4 of the Palermo
Convention), it must be given full effect. In particular, an international court with jurisdiction to
entertain disputes regarding the interpretation or application of the said treaty automatically has
jurisdiction to rule on breaches of those fundamental principles in the treaty’s implementation125.
2.21. As a final argument in support of the claim that Article 4 of the Palermo Convention
does not constitute an “independent obligation”, even in the sense intended by Equatorial Guinea,
France makes selective reference to the Commentary on the United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances126. This argument cannot be accepted.
Equatorial Guinea explained in its Memorial that Article 2 of the latter Convention and its
Commentary serve to illustrate the position of States in respect of that provision, which was the
inspiration for Article 4 of the Palermo Convention127. In particular, the Commentary demonstrates
that the article in question has a broad scope and requires strict respect for the principles of
sovereign equality and non-intervention128.
2.22. Equatorial Guinea also argued in its Memorial that the draft Palermo Convention was
restructured to make Article 4 distinct from the provision covering the Convention’s scope of
application (Article 3)129. This aspect of the travaux préparatoires is significant. The restructuring
in question was a deliberate act by the States participating in the negotiation of the Convention and
confirms their intention to make Article 4 binding in character. France rejects this argument
without any explanation130.
2.23. Finally, Equatorial Guinea notes that France states 􀁿 incorrectly 􀁿 that “[u]nless a
link can be established between the subject-matter of the dispute and the conventional obligations
set out in other articles of the Convention, it must be concluded that the Court does not have
jurisdiction ratione materiae”131, thereby conceding that Article 4 imposes a treaty obligation to
respect the principles of sovereign equality and non-intervention in applying the Convention.
II. The obligations under the Palermo Convention that France has failed
to carry out in a manner consistent with the principles of
sovereign equality and non-intervention
2.24. In Chapter 2, Part II, of the Preliminary Objections, concerning the Palermo
Convention, France considers that the Court does not have subject-matter jurisdiction in the present
123 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, separate opinion of Judge Xue, para. 4.
124 CR 2016/17, p. 9, para. 5 (Pellet).
125 MEG, para. 5.14.
126 POF, paras. 102-103.
127 MEG, paras. 5.20-5.21.
128 Ibid., para. 5.21.
129 Ibid., para. 5.22.
130 POF, para. 103.
131 Ibid., para. 104.
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case because “no question of interpretation or application of a conventional obligation is at
issue”132.
2.25. Contrary to its assertions, France has performed several of its obligations under the
Palermo Convention in a manner that is inconsistent with the principles of sovereign equality and
non-intervention. This conduct raises questions relating to the interpretation or application of the
Convention, and, in Equatorial Guinea’s view, constitutes a breach of Article 4, when read in
conjunction with the Convention’s other provisions. The Court’s jurisdiction under Article 35,
paragraph 2, of the Convention is thus established.
2.26. In this section, Equatorial Guinea will respond to the arguments put forward by France
and explain in detail the scope of the relevant provisions of the Palermo Convention, besides
Article 4, and how they are related to the present dispute. It will begin by examining the obligation
to prosecute the offences set out in the Convention (A), before turning to the Convention’s
provisions on the criminalization of the laundering of proceeds of crime and the establishment of
criminal jurisdiction to prosecute that offence (B). Equatorial Guinea will then consider the
Convention’s provisions relating to the confiscation, seizure and disposal of property (C). Finally,
it will address the obligations under the Convention concerning co-operation between the States
parties (D).
A. France has failed to carry out the obligations under the Convention relating to criminal
proceedings in a manner consistent with the principles of sovereign equality and
non-intervention
2.27. France claims in its Preliminary Objections that the Palermo Convention contains no
provision requiring the prosecution of specific cases for the offences set out in the Convention133.
Thus, the criminal proceedings against the Vice-President of Equatorial Guinea in charge of
National Defence and State Security have been initiated not on the basis of the Convention, but
solely on the basis of French law. This argument is mistaken.
2.28. Contrary to what France contends, the initiation of criminal proceedings against the
Vice-President of Equatorial Guinea falls within the scope of the Palermo Convention. This
Convention contains provisions that oblige France, as a State party, to submit cases to its
competent authorities, and indeed to apply its criminal law to the maximum extent possible and
permissible, in order to deter commission of the offence of laundering the proceeds of crime. The
Court’s jurisdiction in the present case is established, because France has failed to perform these
obligations in a manner consistent with the principles of sovereign equality and non-intervention,
including the rule relating to the immunity of certain holders of high-ranking office in a State, of
whom the Vice-President of Equatorial Guinea is one.
2.29. The Palermo Convention is an international legal instrument in the fight against
transnational organized crime. Its object and purpose are set out in Article 1: “to promote
cooperation to prevent and combat transnational organized crime more effectively”. In General
Assembly resolution 55/25 of 15 November 2000, the United Nations Member States also
expressed their determination to “deny safe havens to those who engage in transnational organized
crime by prosecuting their crimes”.
2.30. France’s suggestion that the Palermo Convention does not apply to criminal
proceedings134 goes against the object and purpose of that Convention, and manifestly disregards its
overall scheme. It is also contrary to the Convention’s express provisions. Article 3, entitled
132 POF, para. 105.
133 Ibid., paras. 107, 108, 112 and 113.
134 Ibid., para. 107.
45
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“Scope of application”, explicitly provides that the Convention applies “to the prevention,
investigation and prosecution” of the offence of laundering the proceeds of crime established under
Article 6 thereof.
2.31. France’s argument that Article 3 of the Convention refers to investigations and
prosecution solely “because of the conventional provisions relating to judicial co-operation”135 is
not convincing. Besides the provisions that directly concern criminal proceedings, the purpose of
the Convention as a whole, and its raison d’être, is the suppression of transnational organized
crime. Without criminal prosecution, the Convention would be largely devoid of meaning, and
deprived of its object and purpose.
2.32. Article 16, paragraph 10, of the Convention clearly shows that it does apply to criminal
proceedings136 and that there is an obligation to submit specific cases to the competent authorities
for prosecution, contrary to what France contends. Moreover, an interpretive note relating to this
provision explains that:
“[t]he travaux préparatoires should reflect the general understanding that States
Parties should also take into consideration the need to eliminate safe havens for
offenders who commit heinous crimes in circumstances not covered by paragraph 10.
Several States indicated that such cases should be reduced and several States stated
that the principle of aut dedere aut judicare should be followed.”137
2.33. Article 11, paragraph 2, of the Convention reflects the position of States which deemed
that account should be taken of the need, where appropriate, to eliminate any safe havens for the
alleged perpetrators of crimes covered by the Convention and to go beyond the circumstances
referred to in Article 16, paragraph 10. It provides:
“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.”
2.34. France’s argument regarding this provision consists in asserting that it does not impose
an obligation, but is merely a recommendation138. Furthermore, abandoning the preceding
argument, France states that Equatorial Guinea does not claim that the French judicial authorities
have pursued a “penal policy” that runs counter to that provision139.
2.35. Contrary to what France writes, Article 11, paragraph 2, of the Palermo Convention
imposes an obligation on the States parties. As explained in Equatorial Guinea’s Memorial, this
provision obliges States to exercise their jurisdictional authority and to apply their criminal law to
135 POF, para. 115.
136 Article 16, paragraph 10, provides that:
“[a] State Party in whose territory an alleged offender is found, if it does not extradite such person in
respect of an offence to which this article applies solely on the ground that he or she is one of its
nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without
undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their
decision and conduct their proceedings in the same manner as in the case of any other offence of a grave
nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each
other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution.”
137 Interpretive notes for the official records (travaux préparatoires) of the negotiation of the United Nations
Convention against Transnational Organized Crime and the Protocols thereto (A/55/383/Add.1), para. 31 (Ann. 11).
138 POF, para. 121.
139 Ibid.
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the maximum extent possible and permissible (always subject to Article 4) in order to deter money
laundering140. Thus, every time that a State party initiates criminal proceedings against an
individual for the alleged commission of an offence covered by the Convention, it is fulfilling this
obligation.
2.36. It should be noted that the position adopted by France in this case is in contradiction
with the one it assumed with regard to the application of the United Nations Convention against
Corruption, Article 30, paragraph 3, of which is identical to Article 11, paragraph 2, of the Palermo
Convention. When France supplied information as part of the implementation review mechanism
of the Convention against Corruption, to demonstrate that it was correctly performing the
obligation set out in Article 30, paragraph 3, it cited, for example, Article 31, paragraph 3, of the
French Code of Criminal Procedure, according to which the “Prosecution Service brings public
action and requests the application of the law”141. It also relied on Article 40 of the same Code,
which provides:
“Article 40 of the Criminal Procedure Code, paragraph 1
The district prosecutor receives complaints and denunciations and decides how
to deal with them, in accordance with the provisions of article 40-1.
Article 40-1 of the Criminal Procedure Code
Where he considers that facts brought to his attention in accordance with the
provisions of article 40 constitute an offence committed by a person whose identity
and domicile are known, and for which there is no legal provision blocking the
implementation of a public prosecution, the district prosecutor with territorial
jurisdiction decides if it is appropriate:
1. to initiate a prosecution;
2. or to implement alternative proceedings to a prosecution, in accordance with the
provisions of articles 41-1 or 41-2;
3. or to close the case without taking any further action, where the particular
circumstances linked to the commission of the offence justify this.”142
2.37. These provisions of the French Code of Criminal Procedure also give effect to
Article 11, paragraph 2, of the Palermo Convention. They concern prosecution and the initiation of
criminal proceedings in specific cases. In this case, Equatorial Guinea accuses France of having
breached and continuing to breach Article 4 of the Convention by initiating and pursuing, through
its courts, criminal proceedings against the Vice-President of Equatorial Guinea for an offence
under the Convention.
2.38. If, as France claims, Article 11, paragraph 2, of the Convention imposed only a general
obligation to introduce a “penal policy” consistent with the requirements of that provision, that
obligation would nonetheless still be subject to Article 4 of the Convention. Consequently, this
“penal policy” must not only make it clear to the law enforcement authorities that opening an
investigation and criminal proceedings in the event of money laundering is the general rule, but
also that the immunities of States under international law, including the immunity of certain
140 MEG, paras. 5.30-5.31.
141 Mechanism for the Review of Implementation of the United Nations Convention against Corruption —
Country review report of France, p. 51 (Ann. 12). The complete document is available at:
http://www.unodc.org/documents/treaties/UNCAC/CountryVisitFinalReports/….
142 Ibid., pp. 51-52.
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holders of high-ranking office in a State, must be taken into consideration before the criminal law
is applied. The criminal proceedings against the Vice-President of Equatorial Guinea demonstrate
that France’s “penal policy” is not in conformity with Article 4 of the Convention. That is a
question pertaining to the merits.
2.39. That the criminal law of a State must be applied and that criminal proceedings must be
initiated to the maximum extent possible and permissible derives not only from Article 11,
paragraph 2, of the Palermo Convention, but from the Convention as a whole. The principal
purpose of the Convention, namely the fight against transnational organized crime, can only be
achieved if States fully implement their domestic legislation giving effect to the Convention.
A State which, having criminalized the offences under the Convention and established its criminal
jurisdiction, decided never to prosecute those offences or to do so only occasionally, would not be
complying with the Convention. Having understood that, France credits itself with having applied
Article 11, paragraph 2, of the Convention “too well”143. This is not at all the case, however: in
order to apply this provision correctly, the States parties to the Convention must also respect the
fundamental principles of international law referred to in Article 4.
B. France has failed to carry out the obligations under the Convention relating to the
criminalization of the laundering of proceeds of crime and the establishment of criminal
jurisdiction to prosecute that offence in a manner consistent with the principles of
sovereign equality and non-intervention
2.40. The Palermo Convention requires States to incorporate certain provisions into their
domestic law. This section addresses only Articles 6 and 15 of the Convention144, which set out the
143 POF, para. 120.
144 Article 6 of the Convention provides:
“1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law,
such legislative and other measures as may be necessary to establish as criminal offences, when
committed intentionally:
(a)(i) The conversion or transfer of property, knowing that such property is the proceeds of crime, for
the purpose of concealing or disguising the illicit origin of the property or of helping any person
who is involved in the commission of the predicate offence to evade the legal consequences of his
or her action;
(ii) The concealment or disguise of the true nature, source, location, disposition, movement or
ownership of or rights with respect to property, knowing that such property is the proceeds of
crime . . .”
Article 15 of the Convention provides:
“1. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction
over the offences established in accordance with articles 5, 6, 8 and 23 of this Convention when:
(a) The offence is committed in the territory of that State Party; or
(b) The offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that
is registered under the laws of that State Party at the time that the offence is committed.
2. Subject to article 4 of this Convention, a State Party may also establish its jurisdiction over any
such offence when:
(a) The offence is committed against a national of that State Party;
(b) The offence is committed by a national of that State Party or a stateless person who has his or her
habitual residence in its territory; or
(c) The offence is:
(i) One of those established in accordance with article 5, paragraph 1, of this Convention and is
committed outside its territory with a view to the commission of a serious crime within its
territory;
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obligation to criminalize the offence of laundering the proceeds of crime and to establish criminal
jurisdiction to prosecute it145. The Court’s jurisdiction in the present case is established, since
Equatorial Guinea considers that the obligations set out in these provisions have not been
performed by France in a manner consistent with the principles of sovereign equality and
non-intervention, including the rule relating to the immunity of a small number of holders of
high-ranking office in a State, which constitutes a breach of Article 4 of the Convention.
2.41. France asserts that the measures it has adopted, or which were already in force in its
domestic law, to implement its obligations under the Palermo Convention are compatible with the
latter’s provisions. It states in general terms that “Equatorial Guinea does not claim that French law
is not in harmony with the Convention”146. The same assertion is made in respect of the specific
provisions of the Convention mentioned in Equatorial Guinea’s Memorial147. This is a misreading
by France of Equatorial Guinea’s written pleadings.
2.42. Equatorial Guinea does not claim that French law fails to criminalize the offence of
laundering the proceeds of crime or that it fails to establish criminal jurisdiction to enable
prosecution of that offence. However, it is of the view that the relevant French legislation, as
interpreted and applied in practice by the French courts, including the Cour de cassation, does not
respect the principles of sovereign equality and non-intervention, and is therefore not in harmony
with Article 4 of the Convention. The incompatibility of French law with these principles manifests
itself in two ways: first, French law does not respect the immunity of certain holders of
high-ranking office in a State, among whom is the Vice-President of Equatorial Guinea in charge of
National Defence and State Security. Second, French law, as interpreted and applied by the French
courts, allows them to go beyond the bounds of their criminal jurisdiction to prosecute the offence
of laundering the proceeds of crime.
2.43. When a treaty imposes obligations that must be implemented by adopting provisions
(legislative or other) in domestic law, the conformity of those provisions with the treaty must be
analysed at two levels. First, the text of a provision in domestic law must comply with the
obligations imposed by the treaty in principle. Second — and this is often more important — the
interpretation or application of that provision must also comply with the treaty in practice. This
second analysis is necessary, because a normative text and its interpretation and application in
practice cannot be regarded as two different things — it is the implementation of the text that
shows its true scope and its effects.
2.44. For a treaty such as the Palermo Convention 􀁿 which imposes an obligation to
criminalize certain offences and to establish criminal jurisdiction to prosecute them, as well as an
obligation, in so doing, to respect the principles of sovereign equality and non-intervention,
including the rules relating to the immunities of States 􀁿 it is particularly important, when
examining whether provisions in domestic law are in conformity with the Convention, to pay
attention to the interpretation and application of those provisions in practice. The majority of
States, including France, do not generally have legislation on immunities. It is consequently in the
practice of the French courts that it may be seen whether France is performing the obligations set
out in Articles 4, 6 and 15 of the Convention.
(ii) One of those established in accordance with article 6, paragraph 1 (b) (ii), of this Convention and
is committed outside its territory with a view to the commission of an offence established in
accordance with article 6, paragraph 1 (a) (i) or (ii) or (b) (i), of this Convention within its
territory . . .”
145 MEG, paras. 5.29 and 6.15.
146 POF, para. 111.
147 Ibid., paras. 116, 117, 125 and 126.
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2.45. France is therefore right to recall that a State must implement the Palermo Convention
by ensuring that its “legal system” is generally in conformity with the provisions of the
Convention148. This harmony must be ensured not only when a legislative text is adopted, but each
time it is interpreted and applied by the domestic courts.
2.46. State practice, including that of France, confirms that the implementation of a
legislative text must be taken into consideration when determining whether that text is compatible
with the obligations arising from a treaty.
2.47. The implementation review mechanism of the United Nations Convention against
Corruption, whose provisions are similar to those of the Palermo Convention, is illuminating in this
regard149. In its review report for the cycle 2010-2015, for example, France explains that it is
carrying out its obligations under the Convention against Corruption as follows:
􀁿 In respect of Article 23 (laundering of proceeds of crime):
“With regard to subparagraph 2 (e), France has indicated that the fundamental
principles of its legal system do not require that the offence of laundering of proceeds
of crime apply to the persons who committed the predicate offence.
The Criminal Division of the Court of Cassation has enshrined the principle that
‘the authorship of the predicate offence was not the sole preserve of the author of the
subsequent crime of money laundering’. The Court first applied this theory to the
situation referred to in paragraph 1 of article 324-1 of the Criminal Code, namely the
facilitation by any means, of the false justification of the origin of property or income
from the author of a felony or misdemeanor which has brought him a direct or indirect
benefit (Cass. Crim., 25 June 2003, No. 02-86.182 or Cass. Crim., 14 January 2004,
No. 03-81.165) and then applied it a second time to the situation referred to in
paragraph 2 of that article, namely providing assistance to an operation of investment,
concealment or conversion of the direct or indirect proceeds of a crime or
misdemeanor. (Cass. Crim., 20 February 2008).”150
􀁿 In respect of Article 27 (participation and attempt):
“In French law, intent is a key element for proving the commission of an
offence. Article 121-3 of the Criminal Code provides in paragraph 1 that ‘there is no
felony or misdemeanor without intent to commit it’.
However, consistent jurisprudence from the Court of Cassation has come to
further explain this requirement by stating that ‘the mere finding of the violation with
knowledge that there is a law or regulatory requirement implies its author for having
intent required by Article 121-3 paragraph 1[’] (Cass. Crim., 25 May 1994). This
applies to the violation of rules on public procurement regarding favoritism, or for
example the ethical rules for public officials for example.”151
􀁿 In respect of Article 29 (statute of limitations):
“the statute of limitations may be suspended by the law and by the judges . . .
148 POF, para. 107.
149 The Palermo Convention does not yet allow for a similar review mechanism.
150 Mechanism for the Review of Implementation of the United Nations Convention against Corruption —
Country review report of France, pp. 35-36 (Ann. 12).
151 Ibid., p. 45.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
case law has come to further lengthen the statute of limitations considering that for all
offences of concealment (embezzlement, misuse of company assets, corruption,
influence peddling, misappropriation of public funds, etc.) the starting point for the
limitation period is fixed as the date of discovery of the offence and not the date of its
commission. The formulation of the principle of the Criminal Division is as follows:
public action only begins to run in cases of concealment ‘from the day when the
offence became apparent and could be observed under conditions permitting the
exercise of prosecution’”152.
2.48. France refers to its case law in a similar manner elsewhere in the report153. It considers
that the interpretation and application of its legislation, in particular by the Cour de cassation, are
as important, if not more so, than the legislative texts themselves when ascertaining whether it is
complying with its obligations under the Convention against Corruption. It is therefore surprising
that France asserts in its Preliminary Objections that Equatorial Guinea “flagrantly disregards the
content of the obligations when it claims that French law applies the Palermo Convention, and that
any implementation of domestic law therefore falls within the scope of the Convention”154.
2.49. The same approach is shared by other States parties to the Convention against
Corruption, and the United Nations Office on Drugs and Crime has taken note of this. In the
document entitled “State of implementation of the United Nations Convention against Corruption”,
it observes, for example, in respect of an article of that Convention, that “numerous
recommendations were issued with regard to proceeding with the necessary legislative amendments
or at least developing guidelines on judicial practice, or with regard to monitoring the way courts
interpret the relevant provisions in the future”155. It was also noted in relation to another of the
Convention’s articles that:
“recommendations were made on broadening the scope of the applicable provisions or
ensuring that the domestic legislation is interpreted in a way that addresses benefits of
a non-material nature. Ambivalent and imprecise jurisprudence is not deemed
satisfactory. States parties should strive to provide for certainty, clarity and uniformity
in the definitions contained in the bribery offences and to address issues of potential
inconsistencies in the manner that such definitions are interpreted domestically, at the
levels of both legislation and application of criminal laws”156.
2.50. The principle whereby a State cannot invoke a legislative text which appears
compatible with an international obligation at first sight, but which, in practice, does not in fact
comply with that obligation, is also applied elsewhere. For example, the Committee against Torture
has observed that, while the definition of “torture” in the Convention against Torture and in the
domestic law of a State may be the same, the meaning of the definition in domestic law may be
qualified by the jurisprudence of that State. This is why the Committee “calls upon each State party
152 Mechanism for the Review of Implementation of the United Nations Convention against Corruption —
Country review report of France, pp. 46-47.
153 Ibid., pp. 44, 79, 98.
154 POF, para. 110.
155 United Nations Office on Drugs and Crime, State of implementation of the United Nations Convention against
Corruption, United Nations, New York, 2015, p. 14 (available at: https://www.unodc.org/documents/
treaties/UNCAC/COSP/session6/15-03457_ebook.pdf). See also p. 17 (“recommendations were made on broadening the
scope of the applicable provisions or ensuring that the domestic legislation is interpreted in a way that addresses benefits
of a non-material nature”).
156 Ibid., p. 17. Further references to the pertinence of jurisprudence to the compliance of a State with the
obligations under the Convention against Corruption can be found on pp. 7, 26, 35, 36, 37, 44, 64, 66, 80, 86, 89 and 120
of this document.
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to ensure that all parts of its Government adhere to the definition set forth in the Convention for the
purpose of defining the obligations of the State”157.
2.51. Finally, it should be recalled that in the case concerning Certain German Interests in
Polish Upper Silesia, the Permanent Court of International Justice also faced the question of
whether a national law was in conformity with the obligations established by a treaty. It determined
that:
“It might be asked whether a difficulty does not arise from the fact that the
Court would have to deal with the Polish law of July 14th, 1920. This, however, does
not appear to be the case. From the standpoint of International Law and of the Court
which is its organ, municipal laws are merely facts which express the will and
constitute the activities of States, in the same manner as do legal decisions or
administrative measures. The Court is certainly not called upon to interpret the Polish
law as such; but there is nothing to prevent the Court’s giving judgment on the
question whether or not, in applying that law, Poland is acting in conformity with its
obligations towards Germany under the Geneva Convention.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In approaching the question whether the two groups of provisions in question
are or are not compatible with a view to giving judgment on submission No. 1, the
Court must consider, on the one hand, the régime established by Head III of the
Geneva Convention and, on the other hand, the scope and effect of the provisions
contained in Articles 2 and 5 of the Polish law of July 14th, 1920.”158
2.52. As Equatorial Guinea has already stated, the French legislation intended to give effect
to Articles 6 and 15 of the Palermo Convention are Articles 113-1 to 113-13 and 324-1 to 324-9 of
the Penal Code, and Article 689 of the Code of Criminal Procedure159. France does not disagree160.
These are, moreover, the same provisions used in the criminal proceedings against the
Vice-President of Equatorial Guinea in charge of National Defence and State Security. What is at
issue in the present case is that this legislation, as interpreted and applied by the French courts,
including the Cour de cassation, is not in conformity with the Convention. This legislation, when
applied, has the effect of infringing the principles of sovereign equality and non-intervention,
which must be respected under Article 4 of the Convention.
2.53. Equatorial Guinea has demonstrated in its Memorial how these principles are not being
respected. First, when applying the above-mentioned provisions, the French courts are failing to
take note of the immunity enjoyed by certain holders of high-ranking office in a State, other than
the Head of State, the Head of Government and the Minister for Foreign Affairs. This is evident in
the criminal proceedings against the Vice-President of Equatorial Guinea in charge of National
Defence and State Security. Furthermore, the French courts are going beyond the bounds of their
criminal jurisdiction and infringing the sovereign rights of Equatorial Guinea. Equatorial Guinea’s
claims in this case are in part aimed at ensuring that France acts in such a way as to guarantee that
its relevant domestic legislation is interpreted and applied in a manner that takes account of the
principles set out in Article 4 of the Convention in all instances.
157 Committee against Torture, General Comment No. 2 (CAT/C/GC/2), para. 9.
158 Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
pp. 19-20.
159 MEG, para. 5.29.
160 POF, paras. 116-117.
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2.54. France contends that Article 15 of the Palermo Convention relates to adjudicative
jurisdiction and not to immunities, and that the two questions must be distinguished161. It is true
that, in the case concerning Arrest Warrant, the Court observed that this distinction must be taken
into consideration162. But it did so in order to conclude that:
“jurisdiction does not imply absence of immunity, while absence of immunity does
not imply jurisdiction. Thus, although various international conventions on the
prevention and punishment of certain serious crimes impose on States obligations of
prosecution or extradition, thereby requiring them to extend their criminal jurisdiction,
such extension of jurisdiction in no way affects immunities under customary
international law, including those of Ministers for Foreign Affairs. These remain
opposable before the courts of a foreign State, even where those courts exercise such a
jurisdiction under these conventions.”163
2.55. The relationship between criminal jurisdiction and immunities was also discussed in
the Enrica Lexie case, notably to establish the jurisdiction ratione materiae of the arbitral tribunal
constituted pursuant to Annex VII of the United Nations Convention on the Law of the Sea. In its
order of 24 August 2015, the International Tribunal for the Law of the Sea found that the arbitral
tribunal would prima facie have jurisdiction to entertain Italy’s claims164. In a declaration,
Judge Paik noted that:
“The present dispute between Italy and India comes down to the question which
State has jurisdiction over the incident which occurred on 15 February 2012. (As the
question of immunity is inextricably linked to that of jurisdiction, it can be considered
to be part of the latter question.)”165
2.56. The arbitral tribunal constituted in that case similarly observed in its order of 29 April
2016 that:
“In deciding how to preserve Italy’s rights, the Arbitral Tribunal is mindful of
the fact that in the current situation Sergeant Girone is under India’s authority alone,
although the decision as to which of the States may exercise jurisdiction, and the
related question of Sergeant Girone’s entitlement to immunity, remain to be decided
when the Arbitral Tribunal considers the merits of the case.”166
2.57. The obligation set out by Article 15 of the Palermo Convention concerns the
establishment of criminal jurisdiction to prosecute the offence of laundering the proceeds of crime.
Read in conjunction with Article 4 of the Convention (to which Article 15 makes express
reference), this obligation can in no way be detached from the question of State immunities. Quite
the opposite: to comply with the Palermo Convention, any legislation establishing criminal
jurisdiction must make an exception for the immunities of States, explicitly or in practice.
2.58. The States parties to the Palermo Convention have confirmed the link between
Article 15 and respect for State immunities. In an analytical report on the implementation of the
161 POF, para. 118.
162 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports
2002, pp. 24-25, para. 59.
163 Ibid.
164 The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order of 24 Aug. 2015, ITLOS Reports
2015, p. 192, para. 54.
165 Ibid., declaration of Judge Paik, para. 2.
166 The “Enrica Lexie” Incident (Italy v. India), PCA Case No. 2015-28, Order on the Request for the
Prescription of Provisional Measures, 29 April 2016, para. 103.
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Convention presented at the Conference of the Parties by the United Nations Secretariat, it was
noted, with regard to the implementation of Article 15 of the Convention, that:
“All reporting States confirmed their capacity to assert such jurisdiction, which
is mandatory under the Convention and in practice virtually universally established.
The only exceptions mentioned concerned diplomatic and other immunities granted
under generally accepted rules of international law as well as special arrangements
applying to foreign troops stationed in a State’s territory.”167
2.59. In the present case, it is a question of whether, under Articles 4, 6 and 15 of the
Palermo Convention, France has established its jurisdiction to prosecute the offence of laundering
the proceeds of crime in a manner consistent with the principles of sovereign equality and
non-intervention. This question is inextricably linked to that of whether the jurisdiction established
by France respects and, in practice, makes an exception for the immunity ratione personae of
certain holders of high-ranking office in a State.
2.60. Finally, Equatorial Guinea wishes to note that France does not appear to dispute the
Court’s jurisdiction with regard to the overextension of French criminal jurisdiction168. It confines
itself to stating that “[t]he criminal proceedings that were instituted do not . . . involve an
extraterritorial extension of the jurisdiction of the French courts, contrary to what Equatorial
Guinea claims”169. This, too, is a question that goes to the merits of the present case.
C. France has failed to carry out the obligations under the Convention relating to the
confiscation, seizure and disposal of property in a manner consistent with the principles of
sovereign equality and non-intervention
2.61. As Equatorial Guinea explained in its Memorial170, France has also failed to perform its
obligations under Articles 12 (“Confiscation and seizure”) and 14 (“Disposal of confiscated
proceeds of crime or property”) of the Palermo Convention in a manner consistent with the
principles of sovereign equality and non-intervention, including the customary rule relating to the
immunity of State property used for government non-commercial purposes. This question clearly
relates to the interpretation and application of the Convention, which establishes the Court’s
jurisdiction ratione materiae to entertain Equatorial Guinea’s requests.
2.62. Article 12 of the Convention requires States to adopt within their domestic legal
systems such measures as may be necessary to enable the confiscation and seizure of proceeds of
crime. As a general point, Equatorial Guinea wishes to recall that it does not agree with France’s
position that the building located at 42 avenue Foch constitutes the proceeds of crime, since no
predicate offence was committed in Equatorial Guinea171.
2.63. Article 12, paragraphs 1 and 2 provide:
“1. States Parties shall adopt, to the greatest extent possible within their
domestic legal systems, such measures as may be necessary to enable confiscation of:
167 Implementation of the United Nations Convention against Transnational Organized Crime: updated
information based on additional responses received from States for the first reporting cycle (CTOC/COP/2005/2/Rev. 1),
p. 11, para. 41 (Ann. 13). The complete document is available at: http://www.unodc.org/documents/
treaties/organized_crime/COP3/CTOC_COP_2005_2_Rev_1_E_20_aug.pdf. The questionnaire to which the States
responded is available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V05/891/58/pdf/V0589158.p…?
OpenElement.
168 MEG, paras. 6.24-6.35.
169 POF, para. 18.
170 MEG, para. 5.32.
171 Ibid., paras. 6.31-6.35. See also Chap. 1, para. 1.8, above.
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(a) Proceeds of crime derived from offences covered by this Convention or property
the value of which corresponds to that of such proceeds;
(b) Property, equipment or other instrumentalities used in or destined for use in
offences covered by this Convention.
2. States Parties shall adopt such measures as may be necessary to enable the
identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this
article for the purpose of eventual confiscation.”
2.64. The question of the relationship between legislative texts and the way in which they are
implemented is also pertinent to the application of Article 12 of the Convention. Thus, French
legislation in the area, and the way it is interpreted and applied in practice, must be consistent with
the obligations under the Convention.
2.65. An interpretive note on Article 12 leaves no doubt as to the importance of respecting
the immunity of the property of foreign States:
“The travaux préparatoires should indicate that interpretation of article 12
should take into account the principle in international law that property belonging to a
foreign State and used for non-commercial purposes may not be confiscated except
with the consent of the foreign State. Furthermore, the travaux préparatoires should
indicate that it is not the intention of the Convention to restrict the rules that apply to
diplomatic or State immunity, including that of international organizations.”172
2.66. As acknowledged in its Preliminary Objections, France aims to implement Article 12
of the Convention through Articles 131-21 and 324-7 of its Penal Code173. Equatorial Guinea has
already shown in its Memorial that these provisions, as interpreted and applied by the French
courts, do not respect the rules relating to the immunity from execution granted to the property of
foreign States, and, in particular, that enjoyed by the building located at 42 avenue Foch in Paris174.
Equatorial Guinea’s claims in this regard are aimed at ensuring that France interprets and applies
the relevant provisions of its criminal legislation in a manner consistent with the principles set out
in Article 4 of the Convention.
2.67. France has also failed to perform the obligation deriving from Article 14 of the
Convention in a manner consistent with the principles set out in Article 4. This provision does not
impose an obligation to adopt measures within the domestic legal system, but applies to the
disposal of specific assets. The first paragraph of Article 14 reads as follows:
“Proceeds of crime or property confiscated by a State Party pursuant to
articles 12 or 13, paragraph 1, of this Convention shall be disposed of by that State
Party in accordance with its domestic law and administrative procedures.”
2.68. This provision requires States to dispose of confiscated property in accordance with
their domestic law. It is nonetheless essential that States dispose of such assets in a manner which
is also consistent with the principles set out in Article 4 of the Convention. In the present case, the
building located at 42 avenue Foch, which is owned by Equatorial Guinea, can now be disposed of
by the French courts, since it has already been attached; this constitutes a breach of Article 4 of the
172 Interpretive notes for the official records (travaux préparatoires) of the negotiation of the United Nations
Convention against Transnational Organized Crime and the Protocols thereto (A/55/383/Add.1), para. 21 (Ann. 11).
173 POF, para. 125.
174 MEG, paras. 8.51-8.70.
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Convention175. This question also clearly relates to the interpretation and application of the
Convention, according to the terms of Article 35, paragraph 2, of the latter.
D. France has failed to carry out the obligations under the Convention relating to
co-operation between States in a manner consistent with the principles of sovereign
equality and non-intervention
2.69. Finally, France contends in its Preliminary Objections that there is no dispute between
it and Equatorial Guinea in respect of the obligations of co-operation between States laid down in
the Palermo Convention176. Contrary to these assertions 􀁿 which, moreover, are
unsubstantiated 􀁿 Equatorial Guinea has shown in its Memorial that Article 4 of the Convention
and certain provisions concerning co-operation have been breached by France. The questions raised
by Equatorial Guinea in this regard also relate to the interpretation and application of the Palermo
Convention, Article 35, paragraph 2, of which establishes the Court’s jurisdiction.
2.70. First, Equatorial Guinea contends that France has failed to take account of information
provided by the authorities of Equatorial Guinea since 2010, and more recently on 19 January
2017177, according to which none of the predicate offences alleged against the Vice-President of
Equatorial Guinea have been committed in Equatorial Guinea. France’s conduct constitutes a
breach of Article 4, Article 15, paragraph 5, and Article 18, paragraph 1, of the Palermo
Convention. This is a question for the merits.
2.71. Second, Equatorial Guinea has argued that France’s request for mutual legal assistance
of 14 November 2013 was made in a manner contrary to Article 4 of the Convention. That request
for mutual assistance was made expressly on the basis of the Palermo Convention178, which
highlights the relationship between the actions of the French courts and the Convention. In view of
the personal immunity enjoyed by the Vice-President of Equatorial Guinea, France should have
refrained from making such a request on the basis of the Convention. This is another question that
goes to the merits of the present case.
2.72. France has made much of the fact that Equatorial Guinea chose to act on the
above-mentioned request for mutual legal assistance179. Equatorial Guinea wishes to recall that it
acted on that request simply in order to assert, once again, the immunity ratione personae of its
Vice-President before the French courts180. In any event, Equatorial Guinea’s conduct cannot be
interpreted as a waiver of that immunity.
Conclusions
2.73. For the reasons set out in this chapter, the Court has jurisdiction on the basis of
Article 35, paragraph 2, of the Palermo Convention to entertain the dispute between Equatorial
Guinea and France. It appears from the foregoing arguments that, among other things:
175 As noted in paragraph 1.25 above, at the hearing of 5 July 2017, the Public Prosecutor called for the penalty of
confiscation in respect of the building located at 42 avenue Foch in Paris, notwithstanding the Court’s Order of
7 December 2017.
176 POF, para. 105.
177 Letter from the President of Equatorial Guinea to the President of the French Republic, 19 Jan. 2017 (Ann. 4).
See also para. 1.8 above.
178 Embassy of France in Equatorial Guinea, Note Verbale No. CHAN/92/2014, 13 Feb. 2014 (Ann. 14) (“In the
absence of a treaty on mutual legal assistance in criminal matters between France and Equatorial Guinea, this request is
made on the basis of the United Nations Convention against Transnational Organized Crime”.); Request for international
legal assistance of the Paris Tribunal de grande instance, 14 Nov. 2013, p. 2 (Ann. 15).
179 POF, para. 123. See also CR 2016/15, p. 12, paras. 26-27 (Alabrune).
180 MEG, paras. 3.45-3.48.
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􀁿 article 4 of the Palermo Convention imposes a treaty obligation to respect the principles of
sovereign equality and non-intervention, including the rules relating to the immunities of
States, when applying the Convention;
􀁿 the dispute concerns the interpretation and application of the Palermo Convention, since, in
Equatorial Guinea’s view, the manner in which France has performed its obligations relating to
criminal prosecution is in breach of Article 4, read in conjunction with Article 11, paragraph 2,
and, more generally, the Convention as a whole;
􀁿 the dispute concerns the interpretation and application of the Palermo Convention, since, in
Equatorial Guinea’s view, the manner in which France has performed its obligations relating to
the criminalization of the laundering of proceeds of crime and the establishment of its criminal
jurisdiction is in breach of Article 4, read in conjunction with Articles 6 and 15;
􀁿 the dispute concerns the interpretation and application of the Palermo Convention, since, in
Equatorial Guinea’s view, the manner in which France has performed its obligations relating to
the confiscation, seizure and disposal of property is in breach of Article 4, read in conjunction
with Articles 12 and 14;
􀁿 the dispute concerns the interpretation and application of the Palermo Convention, since, in
Equatorial Guinea’s view, the manner in which France has performed its obligations relating to
co-operation between States is in breach of Article 4, read in conjunction with Articles 15
and 18.
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CHAPTER 3
THE COURT’S JURISDICTION ON THE BASIS OF THE OPTIONAL PROTOCOL TO THE
VIENNA CONVENTION ON DIPLOMATIC RELATIONS
3.1. The Court has jurisdiction to entertain the dispute between Equatorial Guinea and
France regarding the status of the building located at 42 avenue Foch in Paris on the basis of
Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations.
3.2. France has criticized Equatorial Guinea for devoting little space in its Memorial to the
question of the Court’s jurisdiction181. In this regard, the first ten paragraphs of Chapter 3 of
France’s Preliminary Objections are perplexing. They are either a misinterpretation of the law, the
facts of the case and the statements made on behalf of Equatorial Guinea, or constitute a line of
argument that is irrelevant for the purposes of these proceedings. The passage from Equatorial
Guinea’s Memorial, cited by France as setting out the existence of the dispute and the Court’s
jurisdiction to entertain it, 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.”182
3.3. This passage not only forms part of a section comprising several paragraphs, it also
clearly establishes the existence of a dispute between the two Parties regarding the interpretation
and application of provisions of the VCDR. The Court has jurisdiction, on the basis of the Optional
Protocol, to entertain this dispute. France evidently favours addressing these matters in more detail.
Equatorial Guinea notes that it does not limit itself to “bald, unsubstantiated assertions”183, as
France claims. The Memorial invokes the treaty basis of the Court’s jurisdiction184, as well as the
relevant treaty provisions whose interpretation and application underlie the dispute between the two
Parties185. This is what is required of a party that seises the Court on the basis of a treaty clause, as
in these proceedings.
3.4. Equatorial Guinea again takes the view that there is no need to insist on recalling, as
France does, that the Order indicating provisional measures confines itself to the “prima facie
jurisdiction of the Court” and “in no way prejudges the question of the jurisdiction of the Court to
deal with the merits of the case”. This has been the Court’s consistent position, one with which
Equatorial Guinea has never suggested that it disagrees. France, however, cannot use this position
as a basis for over-interpreting the Court’s Order of 7 December 2016, or for putting words into the
Court’s mouth. There is nothing to suggest that the Court is being any more “notably cautious”186
than usual, or that it is making more than its usual observations in its orders on provisional
measures when it states 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”. The Court
181 POF, para. 129.
182 MEG, para. 5.46.
183 POF, para. 129.
184 MEG, paras. 5.37-5.41.
185 Ibid., Chap. 8, particularly paras. 8.4 et seq.
186 POF, para. 131.
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could not dispense with this basic level of caution, rendered by the adverb “apparently”, without
prejudging its jurisdiction on the merits, which it cannot do at the provisional measures stage when
its jurisdiction is based on prima facie considerations. The Court routinely uses this Latin phrase to
confirm that it “appears” to have jurisdiction to indicate provisional measures. This is not unique to
the present case187.
3.5. Finally, Equatorial Guinea takes note of the fact that France “does not dispute that the
formal conditions for relying” on the Optional Protocol are met in this instance188. However, it does
not agree with the manner in which France distorts the presentation of the subject-matter of the
dispute to conclude that the Court lacks jurisdiction in this case.
3.6. A dispute submitted to the Court on the basis of the Optional Protocol must arise out of
“the interpretation or application of the Convention”189. The Respondent interprets the need for a
connection between the dispute and the Convention as requiring the Applicant to prove that the
dispute falls “under the provisions of the Vienna Convention”190. It takes the view that, by asking
the Court to settle the question of whether the building at 42 avenue Foch in Paris enjoys immunity
as premises of the diplomatic mission and as property of the State191, Equatorial Guinea is not
submitting the “real dispute”192 to the Court. Such reasoning is at best confused. On the one hand,
France contends that the dispute must fall under the provisions of the VCDR; on the other, it argues
that the question of whether the building should enjoy immunity is excluded on the pretext that it is
not the true subject-matter of the dispute. The criterion is either that the dispute must fall under the
provisions of the Convention, or that it must be the “real dispute”, which is, moreover, undefined.
3.7. By invoking this “concept” of a “real dispute”, the precise meaning of which is unclear,
France over-interprets the statement made by the Court in its Order of 7 December 2016, referring
to its Judgment in the case concerning Fisheries Jurisdiction, that it is for the Court itself to
determine “on an objective basis the dispute dividing the parties, by examining the position of
both”193. Even if the Court does not confine itself to the Applicant’s formulation, the “real dispute”
criterion would not apply; clearly, what the Court must ask itself is whether the dispute falls under
the provisions of the VCDR. The question of whether the building at 42 avenue Foch benefits from
the Article 22 régime can only fall under the provisions of the VCDR. This is the dispute that
Equatorial Guinea is submitting to the Court.
3.8. France’s claim that the dispute does not concern Article 22 of the VCDR is all the more
curious, since it states, in the alternative, that if the Court were to consider its jurisdiction
established in respect of the building at 42 avenue Foch, it “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”194. Once again, this is a selective understanding of the
subject-matter of the dispute: it is evident that the lawfulness of the attachment can only be
187 See more recently still: Jadhav Case (India v. Pakistan), Provisional Measures, Order of 18 May 2017,
para. 15; Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Provisional Measures, Order of 19 April 2017, para. 62.
188 POF, para. 132.
189 Optional Protocol, Art. I.
190 POF, para. 134.
191 MEG, para. 2.9.
192 POF, para. 136.
193 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
pp. 448-449, paras. 30-31.
194 POF, para. 138.
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determined by reference to the principle of immunity, which also includes the inviolability of
premises of a diplomatic mission that Equatorial Guinea considers applicable in this case.
3.9. Equally, France cannot argue that the real dispute is whether or not the building at
42 avenue Foch should be considered as being used for the purposes of Equatorial Guinea’s
diplomatic mission in France, while at the same time claiming that this question does not form part
of the dispute since it is a “preliminary” issue195. This is yet another contradiction: the Respondent
is seeking to demonstrate that the real question determining the application of Article 22 of the
VCDR — namely, whether the building at 42 avenue Foch constitutes “premises of the mission” in
the sense of Article 1 (i) of the Convention — does not “aris[e] out of the interpretation or
application of the Convention”, as provided by the Optional Protocol. In short, in France’s view,
although there is a dispute between the two Parties, it is not the “real dispute” that has been
submitted to the Court, hence its lack of jurisdiction.
3.10. In the following sections, Equatorial Guinea reiterates what it stated in its Memorial:
that there is indeed a dispute between it and France regarding the interpretation and application of
the VCDR in respect of the inviolability of the premises of Equatorial Guinea’s diplomatic mission
in France (I). In the second section, it will show that the Court has jurisdiction to entertain the
entire dispute (II).
I. There is a dispute between Equatorial Guinea and France regarding the interpretation
and application of the Vienna Convention on Diplomatic Relations
3.11. Equatorial Guinea will respond to France’s arguments in two stages. It will show, first,
that there is a dispute between the Parties regarding the question of whether the building at
42 avenue Foch in Paris constitutes the premises of the diplomatic mission in the sense of
Article 1 (i) the VCDR (A); and, second, that there is a dispute between the Parties relating to the
interpretation and application of Article 22 of the VCDR (B).
A. There is a dispute regarding the interpretation and application of Article 1 (i) of the
VCDR
3.12. Article 1 (i) of the VCDR provides that:
“[t]he ‘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”.
3.13. France has sought to demonstrate that this provision does not indicate the procedure for
establishing premises of a diplomatic mission, that practice in the matter varies, and that a small
number of States, unlike the majority, have legislation or rules on the establishment of premises of
a diplomatic mission196. This is not contested by Equatorial Guinea. However, the Parties do not
draw the same conclusions from these facts.
3.14. Relying on Article 1 (i) of the VCDR, Equatorial Guinea stated to France, and in its
written pleadings before the Court, that the “declaratory” nature of the régime establishing the
premises of a diplomatic mission was implicit in the terms of that provision, according to which,
the buildings that constitute “‘premises of the mission’ are the buildings . . . used for the purposes
of the mission”; there is no need for a recognition process. Although Article 1 (i) does not specify a
procedure for establishing premises of a diplomatic mission, there is by no means a legal void, as
France would like to suggest. As soon as a building is designated for the purposes of a diplomatic
mission by the sending State — at least in the absence of clear and undisputed conditions imposed
195 POF, para. 137.
196 Ibid., paras. 159 et seq.
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by the receiving State on all sending States, without discrimination — the receiving State must
recognize its inviolability. This is an interpretation “in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose”197.
3.15. According to this interpretation, there is nothing to suggest that Article 1 (i) authorizes
the establishment of specific procedures by the receiving State. It may be understood as authorizing
the sending State to identify the premises of its diplomatic mission itself. That is the practice of a
number of States with no specific domestic legislation in this area. And that is precisely the
situation of France, unlike the United Kingdom, for example, whose relevant legislation France has
been quick to cite (as has been noted), while failing to mention its own. The Respondent invokes its
“constant practice” in the area198, but does not offer any specific examples.
3.16. There is, it must be said, a contradiction in France’s assertions: on the one hand, it
argues that Article 1 (i) is silent on the establishment of premises of a mission; on the other, it
claims that it is for the host State to accredit such premises at its sole discretion199. This stance is in
clear opposition to that maintained by Equatorial Guinea, and illustrates that there is a dispute
between the Parties regarding the interpretation of the VCDR provision at issue here.
3.17. The travaux préparatoires of the VCDR referred to by France do not address the issue
of the establishment of premises of a diplomatic mission. France, moreover, recognizes as much
when it asserts that the draft articles of the Convention adopted in 1958 do not “specify how the
status of diplomatic premises is acquired”200. It then claims that “[t]he 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”201. By relying so
heavily on practice202, not only does France address the merits of the case, but its reasoning seems
illogical. Diversity of State practice does not constitute proof that a subject is not covered by a
treaty. It may, on the other hand, show that States interpret a treaty’s provisions differently. Such is
the situation here, except that, even in the absence of Article 1 (i) of the VCDR, there would still be
a question of interpretation as to what constitutes diplomatic premises.
3.18. France continues to confuse the Court’s jurisdiction with the merits of the case. It is
therefore necessary to recall that Equatorial Guinea demonstrated in its Memorial, citing national
practice in support203, that the approval of the receiving State for the establishment of premises of a
diplomatic mission was the exception, particularly in States with legislation to that end. Obtaining
the receiving State’s consent to use a building as premises of a diplomatic mission is not always
essential. It is clear from the practice of most States that the starting-point for acquiring diplomatic
status is designation for the purposes of a diplomatic mission. In the event of a disagreement
197 Vienna Convention on the Law of Treaties, Art. 31, para. 1.
198 POF, para. 167.
199 Ibid., para. 159.
200 Ibid., paras. 161-162.
201 Ibid., para. 163.
202 Ibid., paras. 163-165.
203 For the record, the following may also be cited here: Petrococchino v. Swedish State, 1929-1930, AD No. 198,
(“[t]he acquisition of real property by a foreign State does not ipso facto invest that property with the privilege of
exterritoriality: it is necessary that the property be completely appropriated to the service of the embassy”); Beckman v.
Chinese People’s Republic, 1957, ILR, Vol. 24, p. 221 (the Swedish Supreme Court refused to exercise its jurisdiction in
a dispute relating to the validity of the sale of a property to the Chinese People’s Republic, holding that even if foreign
States do not generally enjoy immunity from actions in respect of real property, once “the property in this case [wa]s used
by the Republic for its Embassy in this country[, China could] plead immunity”); Tietz et al. v. People’s Republic of
Bulgaria, Weinmann v. Republic of Latvia, Bennett and Ball v. People’s Republic of Hungary, ILR, Vol. 28, pp. 369,
385, 392 (the Supreme Restitution Court for Berlin ruled that immunity depends only upon an actual and present use of
the premises).
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between States regarding the establishment of such premises, the point of view of the receiving
State does not necessarily prevail.
3.19. An official commentary on the subject states in this regard that, even if applicable
legislation exists, the VCDR would take precedence in the event of a disagreement204. Eileen Denza
is clear on this point: “Article 1 (i) of the Convention does not require a sending State to seek the
approval of the receiving State before acquiring property for use as premises of its mission”205. It is
common practice to consider in good faith the declaration of a State asserting the diplomatic status
of the premises of its mission206.
3.20. In order to deny the existence of a dispute between the Parties, France introduces a new
criterion, which no longer concerns whether the dispute falls under the provisions of the
Convention invoked as the basis of jurisdiction, but is a requirement to ‘“establish a reasonable
connection between the Treaty and the claims submitted to the Court’”207. It concludes,
unsurprisingly, that “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”208.
3.21. This notion of a “reasonable connection” is irrelevant for establishing the Court’s
jurisdiction. The only relevant question is whether there is a dispute between the Parties regarding
the application or interpretation of the provisions of the VCDR. And it is beyond doubt that such a
dispute exists. As the Court remarked in its Order of 7 December 2016:
“[it] notes that 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.”209
3.22. France is once again mistaken about the criterion applicable under the Optional
Protocol when it claims that, “[s]ince 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”210. First, there are
provisions of the Convention that are relevant in this case, namely Articles 1 (i) and 22. Second, the
question to be resolved at the preliminary objections stage is not whether France’s conduct is
unlawful, but whether the dispute between it and Equatorial Guinea — to use the language of
Article I of the Optional Protocol — “aris[es] out of the interpretation or application of the
Convention”. It would be strange to conclude that the question of whether a building constitutes the
204 Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations:
A Commentary, 4th ed., Oxford University Press, 2016, p. 127.
205 Ibid., p. 16.
206 Ibid., pp. 14-15.
207 POF, para. 159.
208 Ibid.
209 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 66.
210 POF, para. 166.
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premises of the mission for the purpose of applying Article 22 does not arise out of the
interpretation or application of the Convention.
3.23. The Court must disregard the conjectures of France, which repeatedly tries to
psychoanalyse the statements or the silence of Equatorial Guinea on a given point of the dispute211.
Besides this tendency to speculate, the Respondent again likes to systematically distort the facts
presented by Equatorial Guinea in order to discredit it, by emphasizing imagined inconsistencies212.
It already made dramatic use of this tactic at the provisional measures stage. To avoid being misled,
the Court must pay close attention to the factual and legal inconsistencies in France’s Preliminary
Objections. Paragraph 171 of those Objections is one such example:
“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’. 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.”
3.24. Such an assertion is legally unfounded and, moreover, contrary to widespread practice:
neither the VCDR nor any other rule of international law provides that every State must own the
premises of its diplomatic mission. If this were the case, a number of States would not have
diplomatic missions, being unable to acquire a building for that purpose. It is worth noting that, in
practice, several States lease the premises housing their diplomatic missions. The risks of abuse
mentioned by France are fictional and the product of paranoia. If France is so concerned about such
risks, one may well wonder why it has not developed its own legislation governing the
establishment of premises of diplomatic missions, as Great Britain or the United States 􀁿 which it
cites so abundantly 􀁿 have done. It is no more able to provide concrete examples of the abuses it
fears than it is to establish any abuse on the part of Equatorial Guinea since it acquired the building
at 42 avenue Foch in 2011 􀁿 well before any measures of constraint, including the attachment of
that building, which France says it is prepared to consider as the sole point of dispute 􀁿 for use as
premises of its diplomatic mission.
3.25. In any event, France is wrong to deny the building diplomatic status on the basis of any
anticipated abuse by Equatorial Guinea in the manner it has done. Diplomatic law is not devoid of
solutions to address situations of abuse.
B. There is a dispute regarding the interpretation and application of Article 22 of the VCDR
3.26. Article 22 of the VCDR provides that:
“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.
211 POF, paras. 168-169.
212 Ibid., paras. 172 et seq.
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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.”
3.27. Contrary to what it suggests in paragraph 171 of its Preliminary Objections, France
does not dispute, in paragraph 141 of that pleading, the fact that the application or invocation of
Article 22 is not dependent on Equatorial Guinea owning the building located at 42 avenue Foch in
Paris213. It would, however, like to take credit for the Court’s finding in its Order of
7 December 2016 that there is a dispute between the Parties concerning Article 22 of the VCDR214,
since it states that, “[i]n so doing, [the Court] 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’ to that
address”215. It endeavours to show that the Court’s prima facie jurisdiction did not cover the
attachment or searches of the building before the summer of 2012, and that, at the current stage of
the proceedings, jurisdiction based on the plausibility of Equatorial Guinea’s rights cannot
suffice216.
3.28. France’s chosen method of demonstration is curious. It suggests that if an argument
was not made at the provisional measures stage, that this was either through ignorance, or that
Equatorial Guinea would then be disqualified from relying on that argument at a later stage of the
proceedings. Equatorial Guinea, however, confined itself at the provisional measures stage to what
was needed to establish the Court’s prima facie jurisdiction; indeed this was recognized by the
Court, which decided in its Order of 7 December 2017 that prima facie jurisdiction was
“sufficiently establish[ed], at this stage”217. If the question of the Court’s jurisdiction over the
merits of the dispute had to be resolved at the provisional measures stage, there would no longer be
any difference between that stage and the preliminary objections stage, between prima facie
jurisdiction and jurisdiction to entertain the merits of the dispute. There was, for example, no need
to enter into a debate on the basis of Article 1 (i) of the VCDR at the provisional measures stage;
there is a need to do so now, because France is invoking the “preliminary issue” argument with
regard to the status of the building, a problem it did not raise at the provisional measures stage.
3.29. Basing itself on the reasoning of the arbitral tribunal established in the Southern
Bluefin Tuna Case, France contends that the claims presented must be “capable of falling within
the provisions of Article 22 of the Vienna Convention”218. According to the Respondent, Equatorial
Guinea has failed to show that Article 22 is applicable to the dispute between the Parties.
To demonstrate this failure, it argues that the Article 22 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”219. But Equatorial Guinea does not have a different understanding of this article.
It simply states that Article 22 of the VCDR applies to the building located at 42 avenue Foch,
because that building forms part of the premises of its mission.
213 POF, para. 141.
214 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 68.
215 POF, para. 144 (emphasis added).
216 Ibid., paras. 145-146.
217 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 Dec.
2016, para. 68.
218 POF, para. 147.
219 Ibid., para. 149.
75
76
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3.30. France declares that it “in no way disputes the fact that diplomatic premises are entitled
to inviolability, as established by Article 22”220. Equatorial Guinea takes note of this. However,
France cannot ally itself with Equatorial Guinea on this subject in the way it does. Indeed,
Equatorial Guinea contends that, by its conduct, France is, for all practical purposes, disputing the
inviolability of diplomatic premises, and that by acting in this way, i.e., by refusing to apply the
provisions of Article 22 to the building located at 42 avenue Foch, it has breached its obligations
under the VCDR.
3.31. France maintains that the building at 42 avenue Foch does not satisfy the definition of
premises of the diplomatic mission and therefore cannot benefit from the application of the
provisions of Article 22; it is, however, prepared to apply these provisions to the former premises
of Equatorial Guinea’s diplomatic mission at 29 boulevard de Courcelles (8th arrondissement),
which have not been used since the mission was transferred to 42 avenue Foch, thereby substituting
itself for Equatorial Guinea in designating the premises of its mission. At the same time, France
recognizes that Article 22 “contains no reference to any criteria or procedure for determining the
diplomatic purpose of a particular premises”221. Such reasoning is difficult to follow: if Article 22
is silent on the subject, why is France refusing to apply the rule of inviolability that derives from it
to the building which Equatorial Guinea declares to be the premises of its diplomatic mission?
Such paradoxical reasoning from the Respondent points to the fact that there is a conflict of legal
views between the Parties. Equatorial Guinea clearly demonstrated in the previous section that the
answer to the question of the diplomatic status of a building is implicitly contained in Article 1 (i)
of the VCDR. That this question is preliminary to invoking Article 22 is a matter of simple logic. It
does not mean that the Parties’ dispute in this regard is outside the provisions of the Convention.
3.32. France asserts that there is no dispute between the Parties concerning Article 22,
because Equatorial Guinea cited the “fail[ure] to recognize the building as the premises of the
diplomatic mission”, whereas Article 22 “imposes no such obligation of recognition on the
receiving State”222. Such a manner of dissecting and distorting Equatorial Guinea’s arguments is
particularly reprehensible since it could mislead the Court. The extracts cited by France in its
attempt to confine the dispute over Article 22 to the question of the recognition of the building’s
diplomatic status are taken solely from Equatorial Guinea’s Application instituting proceedings223.
Yet Equatorial Guinea has described in detail 􀁿 both at the provisional measures stage and in its
Memorial 􀁿 the conduct by the Respondent that has infringed the inviolability of the premises of
its diplomatic mission in France. In view of the facts alleged, France cannot claim that the 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”224. It cannot make such selective use of Equatorial Guinea’s written pleadings, by sometimes
citing all of them (including its oral arguments) and at other times only the Application instituting
proceedings. Equatorial Guinea’s later written pleadings clarify and complement its earlier ones, in
light of the different stages of the proceedings.
3.33. For the aforementioned reasons, there is undeniably a dispute between Equatorial
Guinea and France regarding the diplomatic status of the building at 42 avenue Foch in Paris and
the inviolability it enjoys under both the VCDR and general international law.
220 POF, para. 150.
221 Ibid.
222 Ibid., paras. 153-155.
223 Ibid., paras. 153-154.
224 Ibid., para. 156.
77
78
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II. The Court has jurisdiction to entertain the entire dispute relating to
the interpretation and application of the VCDR
3.34. According to France, should the Court find that it has jurisdiction to entertain the case,
it must confine itself to certain aspects of the dispute. The Respondent has no doubt overlooked the
fact that the Court is competent to entertain the question of the inviolability of the building at
42 avenue Foch in Paris, housing the premises of Equatorial Guinea’s diplomatic mission, but also,
once its jurisdiction has been established, to determine France’s international responsibility, and
that therefore France cannot limit the scope of the dispute referred to the Court by means of an
Application.
3.35. France argues in its Preliminary Objections that the submissions in Equatorial Guinea’s
Memorial go far beyond the definition of the subject-matter of the dispute225. It then cites
Equatorial Guinea’s submissions in full, including those relating to France’s international
responsibility226. With regard to the building at 42 avenue Foch in particular, France maintains, in
the alternative, that if the Court had jurisdiction, “[that] 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”227. Later on it asserts that such limits must be “strict”228, before
concluding in a similar manner, again in the alternative, that should the Court have jurisdiction,
“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”229.
3.36. Equatorial Guinea has sufficiently established the Court’s jurisdiction to entertain the
question of the inviolability of the premises of its diplomatic mission. With regard to the other
aspects of the dispute that France is seeking to exclude from the scope of the Court’s jurisdiction,
Equatorial Guinea recalls that, since international responsibility is a consequence of a breach of an
international obligation, it necessarily forms part of the dispute once the Court’s jurisdiction has
been established. Contrary to France’s assertions, the Court could not strictly confine itself, or only
extend its subject-matter jurisdiction, to the sole question of lawfulness, should its jurisdiction be
established. The Court has itself observed that a compromissory clause on the “interpretation [or]
application” of a treaty covers the consequences of any breach by a State of the treaty, including
the amount of reparation230.
3.37. Limiting the Court to an examination of treaty provisions alone to settle a dispute
submitted to it would be tantamount to suggesting that, if a convention does not expressly state that
the breach of one of its provisions engages the responsibility of the perpetrator, it must be
considered impossible to invoke responsibility in such an event. This kind of reasoning is clearly
inadmissible. In sum, contrary to what France maintains, the question of responsibility falls within
the scope of the Court’s jurisdiction in the present case.
3.38. France also believes that it can limit the subject-matter of the dispute, because, during
the hearings on provisional measures, Equatorial Guinea argued before the Court that the
attachment of movable property which occurred prior to the attachment of immovable property on
19 July 2012 did not form part of the dispute, and this position, the Respondent contends, is
225 POF, para. 44.
226 Ibid., para. 45.
227 Ibid., para. 138 (emphasis added).
228 Ibid., para. 183.
229 Ibid., para. 185 (emphasis added).
230 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 55.
79
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a fortiori valid at the preliminary objections stage231. It also attempts to argue that the fact that
Equatorial Guinea’s submissions in its Application and Memorial — unlike those in its Request for
the indication of provisional measures, which concern the protection of the furnishings of the
premises of the diplomatic mission232 — relate only, as far as the building is concerned, to its
attachment and to Equatorial Guinea’s request that France recognize its diplomatic status233. France
contends that if the Court were to consider its jurisdiction established,
“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 Memorial — to the exclusion of any question relating to the movable
property present in the building before its attachment on 19 July 2012”234.
3.39. As set out above, it is not for France to define the scope of Equatorial Guinea’s
submissions. If the Court cannot compensate for the failure of a party in this regard, as indeed
France has pointed out, why would the other party be able to do so?
3.40. Furthermore, the submissions at the end of the Request for the indication of provisional
measures are specific to the nature and scope of such proceedings. France cannot criticize
Equatorial Guinea because the claims made at that stage are not identical to those in the Memorial
or those made at other stages of the proceedings.
3.41. Finally, all of Equatorial Guinea’s written pleadings, both the Application and the
Memorial, mention the French authorities’ repeated intrusions on the premises of Equatorial
Guinea’s diplomatic mission. The provisions of Article 22 of the Vienna Convention cover a
broader range of measures of constraint than just the attachment of immovable property. If the
Court’s jurisdiction is established with regard to the VCDR, there is nothing to prevent the Court
from examining France’s conduct in the light of the actual scope of the relevant provisions
invoked.
Conclusions
3.42. In sum, having recalled the basis of the Court’s jurisdiction in this case, Equatorial
Guinea has amply demonstrated that there is a dispute between the Parties regarding the
interpretation and application of the relevant provisions of the VCDR, in particular Articles 1 (i)
and 22. This dispute falls within the jurisdiction of the Court by virtue of Article I of the Optional
Protocol. There is nothing to prevent the Court from entertaining this dispute in its entirety. The
Court’s jurisdiction to consider the lawfulness of France’s conduct also implies jurisdiction to
establish that State’s responsibility for any breach by it of international law.
231 POF, paras. 180-181.
232 Ibid., paras. 177-179.
233 AEG, p. 13, para. 41 (c) (i); MEG, p. 182, (c) (i).
234 POF, para. 181 (emphasis added).
80
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SUBMISSIONS
For the reasons set out above, the Republic of Equatorial Guinea respectfully requests the
Court:
(1) to reject the preliminary objections of France; and
(2) to declare that it has jurisdiction to rule on the Application of Equatorial Guinea.
The Hague, 31 July 2017
(Signed) Mr. Carmelo NVONO NCA,
Ambassador of the Republic of Equatorial Guinea
to the Kingdom of Belgium and the Netherlands,
Agent of the Republic of Equatorial Guinea.
81
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ATTESTATION
I hereby certify that the documents reproduced as annexes are true copies of the originals and
that translations into either of the Court’s official languages are accurate.
The Hague, 31 July 2017
(Signed) Mr. Carmelo NVONO NCA,
Ambassador of the Republic of Equatorial Guinea
to the Kingdom of Belgium and the Netherlands,
Agent of the Republic of Equatorial Guinea.
___________
83
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LIST OF ANNEXES
Annex 1: Record of the hearing at the Paris Tribunal correctionnel, 32nd Chambre
correctionnelle, 24 October 2016
Annex 2: Record of the hearing at the Paris Tribunal correctionnel, 32nd Chambre
correctionnelle, 2 January 2017
Annex 3: Malabo Tribunal d’instruction No. 1, Judgment No. 13/2017, 12 June 2017
Annex 4: Letter from the President of the Republic of Equatorial Guinea to the
President of the French Republic, 19 January 2017
Annex 5: Letter from the President of the French Republic to the President of the
Republic of Equatorial Guinea, 16 February 2017
Annex 6: Embassy of Equatorial Guinea, Note Verbale No. 069/2017, 15 February
2017
Annex 7: Ministry of Foreign Affairs of France, Note Verbale No. 2017-158865,
2 March 2017
Annex 8: Embassy of Equatorial Guinea, Note Verbale No. 262/2017, 12 June 2017
Annex 9: Embassy of Equatorial Guinea, Note Verbale No. 300/2017, 6 July 2017
Annex 10: Ministry of Foreign Affairs of France, Note Verbale No. 2017-465600,
18 July 2017
Annex 11: Interpretative notes for the official records (travaux préparatoires) of the
negotiation of the United Nations Convention against Transnational
Organized Crime (A/55/383/Add.1) (excerpts)
Annex 12: Mechanism for the Review of Implementation of the United Nations
Convention against Corruption — Country review report of France
(excerpts)
Annex 13: Implementation of the United Nations Convention against Transnational
Organized Crime: updated information based on additional responses
received from States for the first reporting cycle
(CTOC/COP/2005/2/Rev.1) (excerpts)
Annex 14: Embassy of France in Equatorial Guinea, Note Verbale
No. CHAN/92/2014, 13 February 2014
85
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Annex 15 Request for international mutual assistance in criminal matters of the Paris
Tribunal de grande instance, 14 November 2013 (excerpts)
___________
ANNEX 1
Record of the hearing at the Paris Tribunal correctionnel, 32nd Chambre correctionnelle,
24 October 2016
Record of the hearing at the Paris Tribunal correctionnel
held on 24 October 2016 at 1.30 p.m.
[Translation]
[New transcription by Mr. Emmanuel MARSIGNY of the record of the hearing consulted at the
registry of the Paris Tribunal correctionnel, 32nd Chambre correctionnelle, by his colleague
Ms Mathilde GERRER]
Paris Tribunal de grande instance
Paris Tribunal correctionnel
32nd Chambre correctionnelle
RECORD OF THE HEARING
Hearing of 24 October 2016 􀁿 1.30 p.m. 􀁿 32nd Tribunal correctionnel
President: Bénédicte DE PERTHUIS
Judges: Laurence MOUSSEAU
Elise MELLIER
Public Prosecutor’s Office: Jean-Yves LOURGOUILLOUX,
National Financial Prosecutor’s Office
Registrar: Sandrine LAVAUD
Prosecution No.: 08337096017
Public access to hearing: Public hearing
Type of hearing: Hearing
Method of proceeding: Order of referral to the Tribunal correctionnel of 5 September 2016
DEFENDANT: Teodoro NGUEMA OBIANG MANGUE
Date of birth: 25 June 1969 in Akoakan Esangui (Equatorial Guinea)
Parents: Teodoro OBIANG NGUEMA and Constance MANGUE NSU OKOMO
Address: c/o Mr. Emmanuel MARSIGNY, 203 bis boulevard Saint Germain, 75007 Paris
Profession: Minister of Equatorial Guinea
Nationality: Guinean
Criminal record: No convictions
Characterization:
- 2 -
MONEY LAUNDERING: ASSISTING IN THE INVESTMENT, CONCEALMENT OR
CONVERSION OF THE PROCEEDS OF AN OFFENCE PUNISHABLE BY IMPRISONMENT
NOT EXCEEDING FIVE YEARS in Paris and on national territory, during 1997 and until
October 2011
Custodial status: At liberty
Security measure(s): Arrest warrant dated 11 July 2012 􀁿 Lifted on 19 March 2014
Method of summons: At bailiff’s office on 28 September 2016 􀁿 Registered letter with
acknowledgment of receipt 􀁿 Letter refused by addressee
Method of appearance: Not entering an appearance
Assisted by: 􀁿
Represented by: 􀁿
Nature of trial: Adversarial hearing subject to notification
Decision of the Tribunal: NOTES that the Order for partial dismissal, partial referral and
continuation of the investigation, issued on 5 September 2016, does not meet the provisions of
Article 184 of the Code of Criminal Procedure, insofar as it does not cite the relevant criminal law
and procedural texts.
REFERS the procedure to the Public Prosecutor’s Office for resubmission to the investigating
judge with a view to regularizing the Order for partial referral.
POSTPONES the hearings to
2 January 2017 at 1.30 p.m.; 4 January 2017 at 9 a.m.; 5 January 2017 at 1.30 p.m.; 9 January 2017
at 1.30 p.m.; 11 January 2017 at 9 a.m.; 12 January 2017 at 1.30 p.m.
RESUMMON Mr. Obiang after the new order has been issued, to inform him of the referral dates.
CIVIL PARTY
The association TRANSPARENCY INTERNATIONAL FRANCE
Address: c/o Mr. William BOURDON, 156 rue de Rivoli, 75001 Paris
Legal representative:
Mr. Daniel LEBEGUE
Address:
Method of summons: Sent to counsel who, having received a copy, stamped the original on
26 September 2016
Method of appearance:
Assisted by:
Represented by: Mr. William BOURDON
- 3 -
Nature of trial: Adversarial
Seals: Yes
Conduct of proceedings: The President called the civil parties.
The President noted that the defendant and his counsel were absent.
We heard the Public Prosecutor’s Office, after the filing of the written submissions
Seeking: referral to the Public Prosecutor’s Office and determination of dates.
We heard Mr. BOURDON, counsel for Transparency International France, civil party, present his
argument.
We are not bound by the ICJ.
The Public Prosecutor’s Office on the referral dates: we are not bound by the ICJ.
Mr. BOURDON’s comments.
The court rose at 1.50 p.m.
Hearing resumed at 2.04 p.m.
The PRESIDENT The REGISTRAR
(Signed) (Signed)
___________
ANNEX 2
Record of the hearing at the Paris Tribunal correctionnel, 32nd
Chambre correctionnelle, 2 January 2017
Record of the hearing at the Paris Tribunal correctionnel, 32nd Chambre correctionnelle,
held on 2 January 2017 at 1.30 p.m.
[Translation]
Paris Tribunal de grande instance
Paris Tribunal correctionnel
32nd Chambre correctionnelle
RECORD OF THE HEARING
Hearing of 2 January 2017 — 1.30 p.m. — 32nd Chambre correctionnelle
President: Bénédicte DE PERTHUIS
Judges: Laurence MOUSSEAU
Caroline VIGUIER
Public Prosecutor’s Office: Jean-Yves LOURGOUILLOUX,
National Financial Prosecutor’s Office
Registrar: Sandrine LAVAUD
Prosecution No.: 08337096017
Public access to hearing: Public sitting
Type of hearing: Hearing on the merits
Method of proceeding: Order of referral to the Tribunal correctionnel of 2 December 2016
DEFENDANT: Teodoro NGUEMA OBIANG MANGUE
Date of birth: 25 June 1969 in Akokam Essangui (Equatorial Guinea)
Parents: Teodoro OBIANG NGUEMA and Constance MANGUE NSU OKOMO
Address: Presidential Palace, Malabo, Republic of Equatorial Guinea
Profession: Vice-President of Equatorial Guinea
Nationality: Equatorial Guinean
Criminal record: No convictions
Characterization:
- 2 -
MONEY LAUNDERING: ASSISTING IN THE INVESTMENT, CONCEALMENT OR
CONVERSION OF THE PROCEEDS OF AN OFFENCE PUNISHABLE BY IMPRISONMENT
NOT EXCEEDING FIVE YEARS in Paris and on national territory, during 1997 and until
October 2011
Custodial status: At liberty
Security measure(s): Arrest warrant dated 11 July 2012 — Lifted on 19 March 2014
Method of summons: At bailiff’s office on 28 September 2016 — Registered letter with
acknowledgement of receipt — Letter refused by addressee — At bailiff’s office on 21 December
2016
Method of appearance: Not entering an appearance
Assisted by:
Represented by: Mr. Emmanuel MARSIGNY (C2005), Mr. Thierry MAREMBERT (P200),
Mr. Sergio TOMO (Bar of the Republic of Equatorial Guinea)
Nature of trial: Adversarial
Submissions in limine litis
Submissions to postpone proceedings
Decision of the Tribunal:
CIVIL PARTY:
􀁿 CORED, represented by Mr. SPITZER, replaced by Mr. COURTOT
􀁿 Union Populaire (UP), represented by Mr. SPITZER (P218), replaced by Mr. COURTOT
CIVIL PARTY:
The association TRANSPARENCY INTERNATIONAL FRANCE
Address: c/o Mr. William BOURDON, 156 rue de Rivoli, 75001 Paris
Legal representative:
Mr. Daniel LEBEGUE
Address:
Method of summons: Sent to counsel who, having received a copy, stamped the original on
26 September 2016
Method of appearance:
Assisted by:
Represented by: Mr. William BOURDON (R143)
Nature of trial: Adversarial
- 3 -
Seals: YES
Conduct of proceedings:
The President noted the absence of Teodoro NGUEMA OBIANG MANGUE.
Mr. MARSIGNY: Did not have power of representation in accordance with Article 411 of the
Code of Criminal Procedure.
Had filed a submission that the summons was null and void.
Intended to file an alternative submission seeking the postponement of the proceedings.
The President recalled the order of referral to the Tribunal correctionnel and read out the charge.
The President read out the names of the civil parties.
The President recalled the proceedings in the case so far.
On the representation of Mr. OBIANG:
We heard Mr. William BOURDON, counsel for Transparency International France, civil party,
present his argument.
We heard Mr. MARSIGNY’s reply:
Did we have an appointment of representation? No.
We had been appointed to file submissions.
We heard the submissions of the Public Prosecutor’s Office:
Seeking: The filing of the submissions was equivalent to an appointment (case law of the Chambre
criminelle, 2010).
There is no doubt that Mr. OBIANG is represented.
We heard Mr. MARSIGNY’s reply:
Judgment of 14 October 2008, No. 08-81.617, Bulletin criminel 2008, No. 207.
We heard Mr. BOURDON’s reply.
We heard Mr. MARSIGNY’s comments:
If the submissions of nullity were dismissed or joined to the merits, we would file a submission
seeking the postponement of the proceedings.
On the consequences of the decision of the ICJ of 7 December 2016:
We heard Mr. MARSIGNY’s comments:
Article 668 of the Code of Criminal Procedure.
We were awaiting a decision.
- 4 -
We heard Mr. BOURDON’s comments:
We were awaiting a decision.
Mr. COURTOT supported Mr. BOURDON’s comments.
The court rose at 2.25 p.m.
The hearing resumed at 3.10 p.m.
After deliberation:
The filing of submissions, which had been approved by the Registrar, was equivalent to an
appointment and therefore Mr. NGUEMA OBIANG had valid representation.
The proceedings were adversarial with regard to Mr. NGUEMA OBIANG.
On the postponement:
The President noted that submissions seeking postponement had been filed.
We heard Mr. MARSIGNY, counsel for Mr. NGUEMA OBIANG, the defendant, present his
argument, after filing an alternative submission seeking postponement.
The request was not a delaying tactic.
The issue was the time-limit, which must be reasonable.
Made a request to call witnesses residing abroad.
On the change of address:
It was not possible to send registered letters with acknowledgement of receipt from abroad.
Requested a postponement in the interest of respecting the rights of the defence.
We heard Mr. Sergio TOMO, advocate at the Bar of the Republic of Equatorial Guinea, counsel for
Mr. NGUEMA OBIANG, the defendant, present his argument.
Requested a postponement to expose the truth.
We heard Mr. Thierry MAREMBERT, counsel for Mr. NGUEMA OBIANG, the defendant,
present his argument.
We heard Mr. William BOURDON, counsel for Transparency International France, civil party,
present his argument.
Was opposed to postponement.
Mr. COURTOT supported Mr. BOURDON’s argument.
We heard the submissions of the Public Prosecutor’s Office:
Principally, was opposed to postponement.
In the alternative, if postponement, provide for Mr. NGUEMA OBIANG to appear in person.
- 5 -
We heard Mr. MARSIGNY, counsel for Mr. NGUEMA OBIANG, the defendant, make his reply.
On the consequences of the decision of the ICJ of 7 December 2016:
We heard Mr. MARSIGNY present his argument.
We heard the submissions of the Public Prosecutor’s Office.
We heard Mr. MARSIGNY’s comments:
Article 55 of the Constitution.
We heard Mr. BOURDON present his argument.
The ICJ’s timetable could be around two years.
Having regard to paragraphs 50 and 95 of the decision.
The decision was not an impediment to the continuation of the proceedings.
We heard the submissions of the Public Prosecutor’s Office.
The decision was not an obstacle to the continuation of the proceedings.
We heard Mr. MARSIGNY’s reply.
The President: The opinion of the Ministry of Foreign Affairs?
We heard Mr. BOURDON’s comments.
The decision did not order the trial to be suspended.
The President: The ICJ’s timetable?
Mr. MARSIGNY: Counsel for Equatorial Guinea must file its pleading by 3 January. The French
Republic must file its pleading by 3 July.
We heard Mr. BOURDON’s comments.
We heard Mr. TOMO’s comments.
Case adjourned until Wednesday 4 January 2017 at 9 a.m.
The court rose at 5.05 p.m.
- 6 -
HEARING OF 4 JANUARY 2017
9.10 a.m.
Proceedings continued,
After deliberation,
[Cf. subsequent pages]
The Tribunal could only regret that after Mr. Marsigny’s office, where Mr. NGUEMA
OBIANG MANGUE was domiciled, had refused the registered letter of summons addressed to
him, counsel for the defendant had decided that Mr. NGUEMA OBIANG would neither appear nor
be represented at the hearing of 24 October 2016, and had not even taken the trouble to inform the
court in advance of their absence; such a “precaution” would undoubtedly have dispelled any
misunderstandings as to the object of that hearing (returning the proceedings to the investigating
judge for regularization and referral on the merits). The hearing of 24 October, which they had
been aware was not a hearing on the merits but a so-called “procedural” hearing, had in fact been
the opportunity to discuss the next steps in the proceedings, and therefore the question of
time-limits and hearing dates.
Nevertheless, in accordance with the principle of impartiality, the Tribunal had a duty to take
an unbiased view of the request for postponement made by counsel for Mr. NGUEMA OBIANG,
in strict respect of the rights of the defence, with a view to ensuring the smooth conduct of a fair
trial.
In this instance, counsel for Mr. NGUEMA OBIANG had had eight weeks since 24 October
2016, taking into account the end-of-year holidays, to prepare his defence. In the light of the
specific circumstnaces of the proceedings, which had been the subject of a referral order on
5 September 2016 and then of a regularized referral order to the Tribunal correctionnel notified on
5 December 2016, the Tribunal could understand that such a period might have been insufficient to
prepare Mr. NGUEMA OBIANG’s defence, particularly given his counsel’s work load, the judicial
schedule in that period and the fact that the defendant resided abroad.
* *
Furthermore, on 16 December 2016, the National Financial Prosecutor’s Office had added to
the case file the Order made by the ICJ on 7 December 2016 on the Republic of Equatorial
Guinea’s request for the indication of provisional measures.
According to that Order, on 13 June 2016, the Government of the Republic of Equatorial
Guinea had filed in the ICJ an Application instituting proceedings against the French Republic 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 presented as housing
the Embassy of Equatorial Guinea in France, both as premises of the diplomatic mission and as
State property.
On 29 September 2016, Equatorial Guinea submitted a request for the indication of
provisional measures.
Under the terms of the Order of 7 December 2016 on that request:
- 7 -
“France shall, pending a final decision in the case, 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.”
Paragraph 95 stated:
“With regard to the attachment (saisie pénale immobilière) of the building at
42 avenue Foch and the risk of confiscation, the Court notes that there is a risk that
such confiscation may occur before the date on which the Court reaches its final
decision. In order to preserve the respective rights of either Party, the execution of any
measure of confiscation is to be stayed until the Court takes that decision.”
Moreover, France’s request to remove the case from the General List had been rejected.
Nor had the Court allowed Equatorial Guinea’s request to order that “France suspend all the
criminal proceedings brought against the Vice-President of the Republic of Equatorial Guinea”.
Paragraph 7 of the Order stated that by an Order dated 1 July 2016, the Court had fixed
3 January 2017 and 3 July 2017 as the respective time-limits for the filing of a Memorial by
Equatorial Guinea and a Counter-Memorial by France.
The question of the legal effects of the Order made by the ICJ on 7 December 2016 and the
schedule of the proceedings before that court had been raised at the adversarial hearing of
2 January 2017 during the arguments on the request for postponement.
* *
Under Article 94, paragraph 1, of the Charter of the United Nations, the decisions of the ICJ
were binding on each Member State in any case to which it was a party. While the ICJ’s decisions
were only binding on the contracting States, the Tribunal, in the context of the domestic
proceedings referred to it, might wish to take account of the ICJ’s decision on the merits when
interpreting an international rule.
However, in order to respect the principle of the sound administration of justice, a
constitutional objective which was binding on the judicial authorities, and which also obliged them
to deliver judgment within a reasonable period of time, the Tribunal did not necessarily intend to
await the ICJ’s decision on the merits.
In the light of the aforementioned schedule of proceedings before the ICJ, it nevertheless
considered that, as matters stood, it did not have sufficient information about the arguments put
forward by the States, and did not intend, at this stage, in case of a guilty verdict, to relinquish its
power to deal with all aspects of the case (choice of punishment).
Having regard to all these factors, with a view to guaranteeing the smooth conduct of a fair
and impartial trial, the Tribunal decided to postpone the case to a date to be fixed today, once it had
heard, in a few moments’ time, the counsel’s observations on the proposed dates, in this instance
from 19 June 2017 onwards.
This was a postponement of adversarial proceedings for all the parties. Thus, Mr. NGUEMA
OBIANG, defendant, duly summoned to the hearing of 24 October 2016 and aware of the date of
the hearing on the merits since 18 November 2016, the date of notification of the decision of
- 8 -
24 October, absent from the hearing of 2 January 2017 without explanation as to why he had been
prevented from appearing, was represented by his counsel, who had no express power of
representation, but who had filed written submissions at the hearing of 2 January 2017, which had
been approved by the Registrar and the President.
On the witnesses:
Mr. MARSIGNY: Around ten witnesses for the defence.
On Mr. OBIANG’s presence at the hearings: Mr. MARSIGNY stated that he did not have
Mr. OBIANG’s official diary. Mr. MARSIGNY also stated that Mr. OBIANG had not been duly
summoned.
Mr. BOURDON, counsel for a civil party: Six witnesses.
National Financial Prosecutor’s Office: No witnesses.
On the hearing dates:
Mr. MARSIGNY said that he had some scheduling difficulties. He said that he had hearings before
the Court of Appeal on 21 June 2017 p.m.; 22 June 2017 p.m.; 23 June 2017 a.m.; 28 June
2017 p.m.; 29 June 2017 p.m.; 30 June 2017 a.m.
Mr. MARSIGNY also pointed out that the witnesses might need an interpreter.
Mr. BOURDON: No difficulties with the dates.
Mr. MARSIGNY: Six half-days were not enough.
Mr. BOURDON: We could add three half-days.
The Tribunal stated that it was interested in the arguments of the French Republic before the ICJ.
National Financial Prosecutor’s Office: We could schedule a third week of hearings.
Mr. MARSIGNY: We could not start before 3 July. We should aim for 3 September.
Mr. BOURDON: They would try anything to draw out these proceedings.
National Financial Prosecutor’s Office: We needed to fix the dates.
The hearing was suspended at 9.30 a.m.
The hearing resumed at 9.50 a.m.
Postponement of adversarial proceedings for all the parties, to hearings on:
􀁿 Monday 19 June 2017 at 1.30 p.m.;
􀁿 Wednesday 21 June 2017 at 9 a.m.;
􀁿 Thursday 22 June 2017 at 1.30 p.m.;
􀁿 Monday 26 June 2017 at 1.30 p.m.;
􀁿 Wednesday 28 June 2017 at 9 a.m.;
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􀁿 Thursday 29 June 2017 at 1.30 p.m.;
􀁿 Monday 3 July 2017 at 1.30 p.m.;
􀁿 Wednesday 5 July 2017 at 9 a.m.;
􀁿 Thursday 6 July 2017 at 1.30 p.m.
The Court rose at 9.55 a.m.
___________
ANNEX 3
Malabo Tribunal d’instruction No. 1, Judgment No. 13/2017, 12 June 2017
Malabo Tribunal d’instruction No. 1, Judgment No. 13/2017, 12 June 2017
[Translation]
REPUBLIC OF EQUATORIAL GUINEA
JUDICIARY
MALABO PROVINCIAL COURT
BIOKO-NORTE PROVINCE
Ordinary proceedings No. 113/2017
Origin: Malabo Tribunal d’instruction No. 1
Offence: Misappropriation of public funds, corruption, breach of trust and misuse of corporate
assets
Defendants: Amadeo OLUY NKISOGO, Luis NDONG BAKALE BILOGO and Ambrosio
OBURU EKONG MBASOGO, representatives of the companies EDUM SL, SOCAGE SL and
SOMAGUI FORESTAL SL
Counsel: Pascual NSUE EYI ASANGONO
Injured party: The State of Equatorial Guinea, represented by the Public Prosecutor
Reporting judge: AUGUSTIN CHICAMPO BARILA
Chambre pénale
President:
Mr. AUGUSTIN CHICAMPO BARILA
Judges:
Mr. JOSE ESNO NDONG BINDANG
Mr. MIGUEL ANGEL NVE NCHAMA
Mr. ANGEL ONDO NKULU MAYE
Mr. CRISTIAN JOAQUIN NGUA EDU
Mr. MARTIN OBIANG EDU
Ms LUISA NCHAMA ELO
Ms CONSUELO MBOMIO MAÑANA
Ms CLARA FELICIDAD BONKANKA TABARES
Ms Juliana EYANG OKIRI, Secretary of the Chambre pénale of Malabo provincial court,
attests that, as a result of the procedural decisions taken in case No. 113/2017 relating to the
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offences of MISAPPROPRIATION OF PUBLIC FUNDS, CORRUPTION, BREACH OF TRUST
and MISUSE OF CORPORATE ASSETS against Amadeo OLUY NKISOGO, Luis NDONG
BAKALE BILOGO and Ambrosio OBURU EKONG MBASOGO, representatives of the
companies EDUM SL, SOCAGE SL and SOMAGUI FORESTAL SL, and represented by Counsel
Pascual NSUE EYI ASANGONO, the following has been rendered:
JUDGMENT NO. 13/2017
in the city of Malabo, the capital of Bioko-Norte province, on 12 June 2017.
CONSIDERED at public hearing by the Chambre pénale of Malabo provincial court,
composed as above, the decisions taken in ORDINARY PROCEEDINGS NO. 113/2017 relating
to the offences of misappropriation of public funds, corruption, breach of trust and misuse of
corporate assets, against Mr. Amadeo OLUY NKISOGO, Mr. Luis NDONG BAKALE BILOGO
and Mr. Ambrosio OBURU EKONG MBASOGO, representatives of EDUM SL, SOCAGE SL
and SOMAGUI FORESTAL SL, whose respective responsibilities are contained in the
procedural decisions, who have no criminal record and who are on provisional release.
The injured party in this case is the State of EQUATORIAL GUINEA; proceedings were
instituted by the Public Prosecutor of Administrative Investigations.
The Public Prosecutor’s Office, which supports public prosecution in the defence of the law,
is also acting as prosecutor, in the person of prosecutors Mr. RAFAEL ONDO MBA and
Mr. AURELIO ESUBA.
Mr. AUGUSTIN CHICAMPO BARILO is the reporting judge and expresses the view of
the Chambre in the following:
STATEMENT OF THE FACTS
WHEREAS:
ONE, the facts underlying the criminal complaint filed by the Public Prosecutor of
Administrative Investigations, and which constitute the noticia criminis, originate in the order for
partial dismissal and partial referral of proceedings to the Tribunal correctionnel, dated
5 September 2016, for the alleged offences of handling misappropriated public funds, money
laundering, breach of trust and concealment. The above-mentioned order was the subject of an
application to reopen proceedings on grounds of error of fact or law filed by the Financial
Prosecutor on 1 December 2016.
As a result of the application to reopen proceedings filed by the Financial Prosecutor, the
senior judges in charge of the investigation at the Paris Tribunal de grande instance,
Mr. Roger LE LOIRE, Ms Charlotte BILGER and Ms Stéphanie TACHEAU, made an order for
partial dismissal and partial referral of the proceedings against Mr. Teodoro NGUEMA OBIANG
MANGUE on 2 December 2016.
On the basis of the earlier orders issued by the French investigating judges, and having
regard to the possibility that offences automatically subject to prosecution might have been
committed in the Republic of Equatorial Guinea, the Prosecutor of Administrative Investigations
filed a criminal complaint with the Malabo Tribunal d’instruction No. 1, with registry number 287,
on 21 April 2017.
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According to the detailed account of the facts contained in the complaint filed by the
Prosecutor of Administrative Investigations, the criminal proceedings were not initially directed
against Mr. Teodoro NGUEMA OBIANG MANGUE. In fact, the complaint filed on 2 December
2008 by the French association Transparency International France before the senior investigating
judge of the Paris Tribunal de grande instance for the alleged offences of handling misappropriated
public funds, money laundering, breach of trust and concealment, concerned the following African
Heads of State and their families: Mr. El Haj Omar BONGO, Mr. Denis SASSOU NGUESSO and
Mr. Teodoro OBIANG NGUEMA MBASOGO, President of the Gabonese Republic, President of
the Republic of [the Congo] and President of the Republic of Equatorial Guinea, respectively.
In order to reflect the substitution of the accused, namely the replacement of
H.E. Mr. Teodoro OBIANG NGUEMA MBASOGO with Mr. Teodoro NGUEMA OBIANG
MANGUE, the facts must be reproduced as they appear in the two orders for referral of the French
courts dated 5 September and 2 December 2016.
TWO, as previously stated, on 28 March 2007, the associations SHERPA and SURVIE, and
the Fédération des Congolais de la Diaspora, filed a complaint with the Paris Public Prosecutor
against a number of African Heads of State and members of their families for acts of handling
misappropriated public funds.
According to the complainants, these Heads of State and members of their families, during
or after their terms of office, acquired or procured the acquisition of immovable property on French
territory and accumulated movable assets through the intermediary of French banks and/or foreign
banks with operations in France. Their immovable assets in France, in Paris in particular, which are
described as being of considerable value, could not have been financed by their official
remuneration while, at the same time, their countries were facing systemic corruption.
Therefore, these individuals and members of their families can be suspected of handling
misappropriated public funds.
A “large number of documents” — primarily press clippings — referring to several
properties owned by these African Heads of State in France, were filed in support of the complaint.
On 18 June 2007, a preliminary investigation was entrusted to the OCRGDF (the serious
financial crime squad) with the aim of identifying the assets of those named in the complaint
and determining the circumstances in which they had been acquired. On 12 November 2007,
the Paris Public Prosecutor, finding that the offences were not sufficiently established, decided to
take no further action relating to the complaint. By a notice of discontinuance issued on
13 November 2007, the complainants’ counsel was notified that the investigations had not
established any criminal offences, including, in particular, the offence of handling misappropriated
public funds which had been cited in the complaint.
On 2 December 2008, on the basis of the same facts, concerning only the Presidents of the
Gabonese Republic, the Republic of the Congo and the Republic of Equatorial Guinea,
Transparency International France and Grégory NGBWA MINTSA, a Gabonese national, filed a
complaint with civil-party application before the senior investigating judge of the Paris Tribunal de
grande instance.
With regard to the admissibility of its civil-party application, Transparency International
France contended that it fell to the Cour de cassation, through its interpretation of the provisions of
Article 2 of the Code of Criminal Procedure, to determine whether the associations’ civil-party
applications, including those of the associations that were not authorized, were admissible in so far
as the alleged offences undermined the collective interests that the associations aimed to defend.
According to Transparency International France, the alleged offences, which were characterized as
the handling of misappropriated public funds, fell within the scope of corruption as defined by the
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United Nations, and thus undermined the interests that it defended, since they were in direct
opposition to its campaigns to fight corruption.
On 8 April 2009, in response to a request for an opinion from the senior investigating judge,
the Paris Public Prosecutor submitted that the complaint should be rejected.
THREE, by an order of 5 May 2009, the senior investigating judge found Transparency
International France’s action admissible. According to the judge, the documents produced by the
association demonstrated — in respect of its work, in particular — that its objectives of preventing
and fighting corruption were genuine. He highlighted the association’s numerous activities,
especially those aimed at ensuring restitution of the so-called “ill-gotten” gains, demonstrating that
it was suffering personal, economic harm caused directly by the offences it alleged, which
undermined the collective interests that it defended and that constituted the very foundation of its
campaign.
The senior investigating judge considered that even though the fight against corruption was
also one of the general interests of society for which redress was to be ensured by the Public
Prosecutor’s Office, this could not deprive an association that had been created specifically to fight
corruption of the right to file a civil-party application if the association demonstrated with decisions
personal harm directly related to its purpose under its charter. He added that the ability to file a
civil-party application was an even more effective means of ensuring this fight, by allowing
legal action to be taken outside the countries that may have been directly concerned by the
acts of misappropriation.
On 7 May 2009, the Paris Public Prosecutor appealed this decision. The appeal was limited
to the admissibility of Transparency International France’s civil-party application.
By a judgment of 29 October 2009, the Chambre de l’instruction of the Paris Cour d’appel
overturned the senior investigating judge’s decision and declared the association’s civil-party
application inadmissible. In the court’s view, the association — a legal person separate from
TRANSPARENCY INTERNATIONAL — had not provided any supporting evidence permitting a
finding that the alleged material harm might exist. The only harm that it could claim as a result of
the offences in question, against which it sought to campaign, was not personal harm as opposed to
detriment caused to the general interests of society, which is redressed by means of criminal
prosecution by the Public Prosecutor’s Office. It also reasoned that the interpretation put forward
by the contested civil-party applicant would have the effect of obviating the purpose of the French
legislative and regulatory framework governing the accreditation of associations. Ultimately, in
these circumstances, although the Public Prosecutor’s Office did not have exclusive power to
pursue criminal prosecution, and although the object of the association was entirely legitimate, its
civil-party application with respect to the defence of the general interests falling within the purview
of the Public Prosecutor’s Office was not admissible.
On 9 November 2010, in response to the appeal lodged by the association, the Cour de
cassation took a position in the latter’s favour. It pointed out that the grounds set forth by the
Chambre de l’instruction were in part inapplicable because of the broad definition of corruption,
which, according to the civil-party applicant’s charter, it sought to prevent and combat. In its view,
assuming them to be established, the offences under investigation, in particular the handling and
laundering in France of assets paid for out of misappropriated public funds, offences which were
themselves facilitated by corrupt practices but which are distinct from the offence of corruption,
would indeed be likely to cause direct and personal harm to Transparency International France, on
account of the specific object and purpose of its mission.
The Cour de cassation quashed the judgment of 29 October 2009 without referring it back
and ordered the case to be submitted to a Paris investigating judge so that the investigation could be
- 5 -
continued. By an application dated 1 December 2010, the Public Prosecutor requested that an
investigating judge be assigned. By an order dated the same day, two investigating judges were
assigned.
FOUR, after the French Cour de cassation had quashed the 29 October judgment of the
Paris Cour d’appel and two investigating judges had been assigned to continue the investigation of
the facts and of the alleged perpetrators of the offences cited in the complaint of 2 December 2008,
some of the individuals under judicial examination were substituted by their sons. Specifically, in
the case of the Republic of Equatorial Guinea, H.E. Mr. Teodoro OBIANG NGUEMA
MBASOGO was replaced by his son Mr. Teodoro NGUEMA OBIANG MANGUE.
In effect, on 27 January 2011, Daniel LEBÈGUE, the President of the association, was heard
in his capacity as a civil-party applicant. He confirmed the terms of the complaint of 2 December
2008, specifying that his association had new information concerning, in particular, a building
likely to belong to Teodoro NGUEMA OBIANG MANGUE, and demanding that provisional
measures be taken to prevent the dissipation of the suspects’ assets. On 1 [February] 2011, the
association submitted further information, in particular concerning a building located at 42 avenue
Foch in Paris which belonged to the OBIANG family.
On 4 July 2011, the Paris Public Prosecutor transmitted a procedural directive. He recalled
that the acts described by the association related to the acquisition and possession in France of
movable and immovable assets which may have been paid for with monies derived from the
“misappropriation” of foreign public funds, in this case funds originating from the State of
Equatorial Guinea. In his view, the characterization of misappropriation of public funds as
provided for in Article 432-15 of the Penal Code was not applicable in so far as, assuming the facts
to be established, they did not constitute misappropriation committed by persons in a position of
public authority in France, but rather misappropriation of foreign public funds (of
Equatorial Guinea), committed by foreign authorities (of Equatorial Guinea). The Paris Public
Prosecutor thus rejected that characterization and the characterizations of complicity in and
concealment of that offence. He also asserted that the characterizations of breach of trust and
complicity in breach of trust, which might be applied to the misappropriations complained of,
could not be accepted, since the offences had been committed abroad, by foreign nationals,
against foreign victims, acts to which French criminal law was not applicable, under the
provisions of Articles 113-6 and 113-7 of the Penal Code, and that the offences of misuse of
corporate assets and complicity in the misuse of corporate assets were not applicable because
they concerned only commercial companies incorporated under French law.
He considered that the facts cited in the complaint could be characterized only as
money laundering or handling offences, since even though the laundering or handling in
France of an asset obtained through an offence committed abroad by a foreign national was
not subject to French law, it was punishable in France, provided that the elements of the
original offence were identified.
The Public Prosecutor’s Office accordingly submitted that the investigation should concern
only the facts that could be characterized as money laundering or handling offences.
FIVE, as the complaint with civil-party application and the procedural directives stood, the
judicial investigation focused on the offences of complicity in the misappropriation of public funds,
misuse of corporate assets and complicity in the misuse of corporate assets, breach of trust and
complicity in breach of trust, money laundering and complicity in money laundering, handling of
misappropriated public funds and of misused corporate assets, and concealing breach of trust.
- 6 -
A letter rogatory was [issued to] the OCRGDF, requesting it to continue its investigations
relating to Equatorial Guinea mentioned in the complaint with civil-party application.
On 31 January 2012, following new evidence arising from the memorandums of 7 and
18 March 2011 from the TRACFIN intelligence unit, the memorandum of 7 March 2011 from the
DNRED (the national directorate for intelligence and customs investigations) and the OCRGDF
report of 4 October 2011, the scope of the investigation was extended to the new facts which could
be characterized as the handling or laundering of the proceeds of an offence.
On 7 February 2014, owing to the nature of the offences and the great complexity of the
facts at issue, the Paris Public Prosecutor relinquished the case to the Financial Prosecutor.
In the period from March 2000 to March 2011, the TRACFIN intelligence unit transmitted
several memorandums relating to the unusual operation of the [SGBGE] bank accounts of
Mr. Teodoro NGUEMA OBIANG MANGUE.
In fact, on page 9 of the order for partial referral, it is stated that to acquire his property in
France
“transfers were sent from an account opened on the books of SOCIÉTÉ GÉNÉRALE
de BANQUE de GUINÉE EQUATORIALE (SGBGE) in the name of SOMAGUI
FORESTAL, a logging company under the control of Teodoro NGUEMA OBIANG
MANGUE, who was Minister for Agriculture and Forestry in his country at the time.
Subsequently, several other identical transfers were sent: on 16 April 2010
(€1,665,638.67), 16 September 2010 (€1,665,638.67), 20 September 2010
(€1,665,638.67), 23 September 2010 (€1,665,638.67), 1 October 2010 (€4,251,847.10)
and 28 October 2010 (€4,041,977.20)”.
On the same page, it is further stated that “[c]onsidering the buyer’s public functions, and the
peculiarity of having a company pay for works of art, the intelligence unit TRACFIN considered,
in its memorandum of 18 March 2011, that stolen assets could be involved”.
On 13 December 2010, the same company, SOMAGUI FORESTAL, through the
intermediary of the same bank, SGBGE, transferred €599,965.05 to Didier AARON et Cie
Antiquités in connection with the sale of works of art. This transaction was the subject of a
memorandum dated 18 March 2011.
Teodoro NGUEMA OBIANG MANGUE also invested in fine wines. In 2008, he purchased
two cases of premier cru classé Bordeaux wine through FOCH SERVICE. In late 2008 or early
2009, another order totalling several hundred thousand euros was placed by his steward. In the first
half of 2010, he purchased a lot of ROMANÉE-CONTI wine for €250,000, paid for by the
aforementioned SOMAGUI FORESTAL.
Between 2005 and 2011, Teodoro NGUEMA OBIANG MANGUE purchased jewellery for
a total amount of €10,070,916, paid for in part by himself (€3,699,837), and in part by SOMAGUI
FORESTAL (€2,320,833) and [SOCAGE]/EDUM (€1,189,972).
On page 10 of the order for partial referral, it is stated that “[t]he investigations also
confirmed the existence of an exceptional vehicle collection . . . On 7 March 2011, the DNRED
produced particularly valuable evidence in this regard”. According to page 12 of the same order,
“[c]ertain vehicles were financed in full or in part by SOMAGUI FORESTAL”.
Furthermore, it is stated on page 15 of the order for partial referral that “[a]n analysis of the
owner account statement confirmed that they were paid by bank transfers from the accounts of
either the Swiss companies or, once again, SOMAGUI FORESTAL”. “From 2007 to 2011, FOCH
- 7 -
SERVICE, whose purpose was to pay for the costs associated with managing the building and its
staff, was financed by funds that also came from SOMAGUI FORESTAL”. On the same page of
the order, it is further stated that “Teodoro NGUEMA OBIANG MANGUE paid Alberto PINTO
for the renovation works either directly or through his companies. The contract was awarded for
€12 million”.
Page 16 of the same order indicates the following:
“The investigation confirmed that FOCH SERVICE had been created to pay
management and staff costs relating to the building. The banking investigations
demonstrated that SOMAGUI FORESTAL had contributed €2.8 million. In that
connection, Teodoro NGUEMA OBIANG MANGUE appeared to be the only link
between these two companies — one which managed private property in Paris and the
other, a Guinean company, which specialized in the production and marketing of
timber . . .
On 21 September 2011, Aurélie DELAURY, née DERAND, chief executive
(gérante) of FOCH SERVICE, confirmed the company’s purpose — to manage the
apartment at 42 avenue Foch in Paris — and that the Swiss company GANESHA was
its sole shareholder. She specified that Rodriguo LEAL was the former chief executive
(gérant) of the company and that invoices for services were sent to SOMAGUI
FORESTAL, adding that in 2011 two invoices had been sent to EDUM, which was
also located in Equatorial Guinea.”
Didier MALYSZKO, Teodoro NGUEMA OBIANG MANGUE’s former house manager
from November 2006 to June 2009, stated that he was paid €5,000 net through transfers from
SOMAGUI. He did not have a payslip, only a contract, since they were abroad for more than six
months each year.
Mourad BAAROUN, an employee of FOCH SERVICE until June 2012 and of
SERENISSIMA, the company responsible for managing the assets of the President of the Republic
of Equatorial Guinea, since 2012,
“confirmed that the purpose of FOCH SERVICE was to manage the costs associated
with the building at 42 avenue Foch in Paris, admitting that it was an empty shell
which had no resources of its own but was financed exclusively by Guinean funds that
primarily came from SOMAGUI FORESTAL. He acknowledged that there was no
economic link between FOCH SERVICE and SOMAGUI FORESTAL, such that the
invoices prepared by FOCH SERVICE were done so only for use as accounting
documents”.
On page 19 of the order for partial referral, it is stated that Aurélie [DELAURAY née]
DERAND
“confirmed that the company’s resources came from transfers from SOMAGUI
FORESTAL and EDUM, whose corporate purposes were unknown to her. She could
not explain why these companies paid the costs relating to the building. She did not
attempt to find out if there was a contract between FOCH SERVICE and these
companies, and she never thought that the origin of the funds was fraudulent. She
followed the instructions that were given to her and never imagined that it was
abnormal to invoice SOMAGUI FORESTAL and EDUM”.
On page 20 of the same order, it is stated that “[o]n 24 April 2014, a list of all of
Teodoro NGUEMA OBIANG MANGUE’s purchases was compiled” and it was established
that, in connection with these purchases, €158,639,322 was paid directly by Teodoro
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NGUEMA OBIANG MANGUE, €14,769,983 was paid by SOMAGUI FORESTAL,
€1,593,964 was paid by SOCAGE and EDUM.
The majority of these purchases were made between 2005 and 2007.
SIX, according to page 21 of the order for partial referral,
“[c]onsidering the extent of Teodoro NGUEMA OBIANG MANGUE’s assets, which
are valued at more than a hundred million euros and were accumulated over just a few
years, it is not possible for them to have been financed by his own official salary
alone.
According to the evidence collected by the American authorities, the individual
concerned received approximately US$80,000 per year in his capacity as minister, and
he was prohibited, by the law of his own country, from carrying out a commercial
activity. The investigations established that the above assets were financed by the
proceeds of criminal offences, beginning with the offence of corruption.”
On 15 June 2012, a request for international mutual assistance in criminal matters was sent
to the judicial authorities in Spain, a country which had maintained close economic ties with
Equatorial Guinea. In that connection, witnesses who had run companies which worked with that
State, and with SOMAGUI FORESTAL in particular, were questioned.
According to page 21 of the order for partial referral,
“Pedro TOMO, the chief executive (dirigeant) of a logging company, explained
that in 1996 a tax was imposed when Teodoro NGUEMA OBIANG MANGUE
became an adviser to the Minister for Forestry, first through the intermediary of a firm
corresponding to a unit within the Ministry which was based at the port and signed
loading permits. Taxes owed to the Government were paid to the Treasury. The
receipt from the Treasury then had to be brought somewhere to obtain a signature for
the loading permit. Prior to Teodoro NGUEMA OBIANG MANGUE’s arrival,
loading permits were issued once payment was made to the Treasury.
Subsequently, in addition to the payment to the Treasury, Teodoro NGUEMA
OBIANG MANGUE, who had become a minister, required all logging companies to
pay him 10,000 francs per cubic metre in order to conduct loading, or more
specifically in order to obtain a signature for the loading permit for exports. He first
received the assessment and payment of the taxes and duties imposed by law. He then
collected cheques made out to SOMAGUI FORESTAL at CCI, a bank in Equatorial
Guinea. Lastly, Teodoro NGUEMA OBIANG MANGUE directly collected cash or
cheques made out to SOMAGUI.
Depending on his preference, and in his presence or not, the regional forestry
officer requested that cheques be submitted in the name of CCI bank for the benefit of
SOMAGUI FORESTAL. When he was there, Teodoro NGUEMA OBIANG
MANGUE directly collected cash, which he brought home with him.
Pedro TOMO specified that the money paid to Teodoro NGUEMA OBIANG
MANGUE for the timber taxes was not all that he collected, given that he received
large sums of money. The majority of the money handled by Teodoro NGUEMA
OBIANG MANGUE was related to SOMAGUI FORESTAL, which did not exist
in reality.
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False certificates had been drawn up to show that the company was
building roads, which were never actually built. Teodoro NGUEMA OBIANG
MANGUE also freely sold the forests of the national reserve to the Malaysian
company SHIMMER. For open forests, Teodoro NGUEMA OBIANG MANGUE
granted concessions to SHIMMER on the condition that payment was made to him
directly.”
SEVEN, in addition to Mr. Pedro Tomo, the following “heads of companies” of the
Republic of Equatorial Guinea’s logging industry were questioned as part of the request for
international mutual assistance in criminal matters sent to the Spanish judicial authorities.
1. Ventura Salvador VILARRASA ARLANDIS (D.1000). He was asked whether the practice of
paying commissions to Mr. Teodoro OBIANG, Minister for Agriculture and Forestry, and now
Vice-President, was still ongoing. He replied that he had no knowledge of the existence of the
said commissions and that, in his view, he was not the person to summon to appear.
2. François BRUNETAUD, Head of Procurement at TUBOIS (D.1460). He was asked what he
knew about the Republic of Equatorial Guinea and how its logging industry operated.
He stated: “You are talking about a comprehensive system of corruption set up by the public
authorities and carried out through the levying of various taxes in place in the logging industry.
In my opinion, these taxes should be raised through the companies making use of the timber.
I would point out that this is not necessarily something which is specific to Equatorial Guinea”.
He was also asked what he knew about the system of commissions imposed by
Teodoro NGUEMA OBIANG MANGUE. He replied: “I have no direct experience of that
system”.
3. ALFONSO LOPEZ FRAILE (D.2333/1). He stated: “I have not personally witnessed
everything that I am telling you — I heard it from Roberto Perraldi. The account was with
BANGE, the national bank of Equatorial Guinea.” When asked whether he had heard of the
companies SOMAGUI FORESTAL, EDUM or SOFONA, he replied: “What? No, I have heard
only of SOMAGUI, a construction company; I do not know if it has operations in other
sectors.” Asked whether the company was involved in construction or logging, he replied:
“Perhaps it is a different company; both SOMAGI and SOMAGUI exist, and
perhaps that is the logging company you are referring to. The company with which I
am best acquainted is SOMAGI, which operates in the construction sector. I am not
familiar with SOMAGUI, however, and I think that this is where there are problems
with expropriations, although I am not certain about anything”.
4. Sotero BLANCO GOICOECHEA (D.1081/2). He was asked what he knew about SOMAGUI
FORESTAL and whether that company was a genuine business. He stated that: “SOMAGUI
FORESTAL does not exist”. When asked whether, during the periods he spent in Equatorial
Guinea, he was aware of the payment of commissions or the introduction of a system of
corruption, he replied no.
5. Antonio CABANELLAS (D.2328/13). He stated that he believed SOMAGUI FORESTAL to
be Teodorin’s company and that SOMAGUI FORESTAL was engaged in genuine activity,
logging, etc. [“]This is what I knew when I was in Bata[”].
6. José BOIX ESCANDEL (D.1092/2). He was asked:
“In which area of your professional activity for the company MATROGUISA
were you required to pay sums of money to representatives of the State of Equatorial
Guinea, or were you aware of such payments being made on behalf of
MATROGUISA?”
- 10 -
The response:
“No payments were made to anyone from the account of MATROGUISA.
I cannot swear that MATROGUISA did not pay anything to Mr. Teodoro Obiang,
Minister for Agriculture and Forestry, but it is well known that everyone was paying”.
7. Miguel Angel MARTINEZ BELAGUER (D.1098/1). He attested that he had paid money to the
Director of Forestry and to Teodoro’s aide who was responsible for finance, but that he had not
kept the documents relating to the payment of those commissions.
8. Antoine LELIEVRE (D.1453/1). According to the record of the French judicial police dated
24 October 2012, he was questioned regarding the fact that the investigation had uncovered a
certain amount of evidence to suggest that the companies SOMAGUI FORESTAL and
SOCAGE were shell companies used by the son of the President of Equatorial Guinea, Teodoro
NGUEMA OBIANG MANGUE, to levy fees of up to ten per cent of the value on all timber
exports, which were generally paid in cash. He replied: “I am aware of the official taxes
relating to exploited volume and of the exit fee applied in most African countries. I know
nothing about Equatorial Guinea.”
9. Ariane CHANTAL KOUAME (D.2118), partner of Mr. Roberto BERARDI of 16 years. She
stated:
“You are asking me whether Mr. TNOM has signing authority for ELOBA’s
bank accounts. The answer is no, only Mr. Roberto BERARDI, as chief executive
(gérant), and the Financial Director, Mr. Fofana BANDIE, from Côte d’Ivoire.”
Mr. BERARDI’s partner further stated that:
“Yes, I am familiar with the company SOMAGUI. It is another of Teodorin’s
companies. SOMAGUI is headquartered in Bata. Teodorin has an interest in an
aluminium company based in Bata. As for SOCAGE, the name means nothing to me.”
10. Mr. Santiago Isaac HANNA IBRAHIM (D.1102). He was asked to state in which area of his
professional activity for the company ABM, he was required to pay sums of money to
representatives of the State of Equatorial Guinea and to Mr. Teodoro OBIANG, Minister for
Agriculture and Forestry, in particular, or whether he was aware of such payments being made
by the company MATROGUISA. He replied that ABM paid taxes on the basis of cubic metres
loaded and that he did not know whether other payments were made by MATROGUISA. He
pointed out that Teodoro OBIANG is the father; that the son, the Minister for Agriculture and
Forestry, is called Teodoro NGUEMA OBIANG. He wished to state that those taxes were
sent to the Minister for Agriculture and Forestry, but he did not know whether they were
legal or not.
11. Mr. Pedro GALIANA GIUIU (D.1095), Director of AÑISOK MONGOLA until 2008. He was
asked:
“In which area of your professional activity for the company AÑISOK were you
required to pay sums of money to representatives of the State of Equatorial Guinea
and to Mr. Teodoro OBIANG, Minister for Agriculture and Forestry, in particular, or
were you aware of such payments being made by AÑISOK?”
He replied:
- 11 -
“Under no circumstances; AÑISOK was a company acquired by an Asian
group, and they themselves were responsible for any dealings with senior officials of
the Guinean Administration.”
12. Mathaus Carl Jacques FRIEDBERG (D.1473), Vice-President of DELMAS. According to the
record of the French judicial police dated 7 February 2013, he stated that: “Our primary market
in Equatorial Guinea is the import of products. I would point out that trade in okoume fell
dramatically because of local laws put in place” when Mr. Teodoro NGUEMA OBIANG
MANGUE was Minister for Forestry.
13. Gervais MOUKIKI (D.1047), Financial manager and (real) administrator of the company
SITSA. When asked whether the payments were sent to Teodorin OBIANG’s account, he
replied no on three occasions; since he did not agree that the individual named was the
beneficiary of the commissions, the investigators helped him to recall that the payments had
been received by the company SOMAGUI FORESTAL.
EIGHT, according to page 23 of the order for partial referral,
“[t]he investigations demonstrated that in addition to the corrupt payments received in
exchange for granting export permits, Teodoro NGUEMA OBIANG MANGUE’s
purchases in France were also financed by the proceeds of misappropriation of public
funds through funds that originated from the Treasury of Equatorial Guinea and
transited through SGBGE, a subsidiary of the bank SOCIÉTÉ GÉNÉRALE based in
Equatorial Guinea . . .
A detailed analysis of the SGBGE bank statements for the 2004-2013 period,
seized during a search of the premises of SOCIÉTÉ GÉNÉRALE, revealed
transactions relevant to the analysis of his assets.
For the 2004-2005 period, which corresponds to the purchase of the shares of
the Swiss companies that owned the building at 42 avenue Foch in Paris, the following
information was brought to light:
􀁿 credit transaction, in August 2004: transaction in the amount of
7,879,095,180 CFA francs, that is, €12,011,603, with the description ‘DEVOL
FONDOS TRF17576’, corresponding to a transfer of funds originating from the
Treasury of Equatorial Guinea;
􀁿 debit transactions, in January 2005: four debit transactions on the account for a
total of €6,253,750 each. Three of these transactions transited through Banque des
États d’Afrique Centrale (BEAC) and then Banque de France before appearing as
a credit to Opaline Estate Ltd.’s account with Crédit Lyonnais in Geneva.
Throughout the period from 2004-2011, some 110 million euros were thus
credited to the personal account of Teodoro NGUEMA OBIANG MANGUE
from the Treasury of Equatorial Guinea, before being partially redirected to
bank accounts opened in the name of the Swiss companies through DAUCHEZ,
the firm managing the property at 42 avenue Foch.”
On page 26 of the order for partial referral, it is asserted that the SGBGE bank could not
have been unaware that Teodoro NGUEMA OBIANG MANGUE’s account
“was funded through transfers originating from the Treasury of Equatorial
Guinea and from commercial companies, in particular the company under
- 12 -
Equatorial Guinean law SOMAGUI FORESTAL and the Malaysian company
SHIMMER, without these credit transactions appearing to be justified by any
legitimate economic, commercial or financial transaction allowing the transfer of
funds from public monies, [text apparently missing] breach of trust and
corruption.”
It is apparent from page 27 of the order for partial referral that
“[t]he investigations revealed that the assets of Teodoro NGUEMA OBIANG
MANGUE had also been paid for with the proceeds from the misuse of corporate
assets . . . In parallel to the financing channels described, the expenditure and lifestyle
of Teodoro OBIANG were funded in particular by the company SOMAGUI
FORESTAL. The bank statements of FOCH SERVICES for the period 2007-2011
showed transfers originating from that company in the amount of some €2.8 million.
Further personal expenditure by Teodoro NGUEMA OBIANG MANGUE was
paid, in full or in part, by SOMAGUI, such as the acquisition of a number of cars. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Aware of the fact that it would be difficult for him to explain away the
mounting evidence showing that he had acquired and paid for a large number of
movable and immovable assets in France out of the proceeds of offences
committed in his country, in particular breaches of probity, Teodoro NGUEMA
OBIANG MANGUE focused his defence exclusively on a criminal immunity that
he claimed to enjoy and on the diplomatic protection attaching to those assets.
The judicial investigation confirmed that neither he nor his assets could
claim to enjoy any immunity enabling him to evade judicial action in France.”
NINE, the order for referral issued by the French investigating judges, however, fails to take
account of the attestation of 26 April 2011 of Mr. Bruno MASSEZ, General Director of SGBGE,
whereby that bank “certifies that the funds available in his accounts are the result of the
commercial activities of his companies on our books”. That same attestation states that
“Mr. Teodoro NGUEMA OBIANG MANGUE is a loyal customer known to
our establishment since 1998. We have a good relationship with him as both a
personal client and a commercial customer”.
Mr. Bruno MASSEZ was placed in temporary custody according to the record of
13 February 2014 (D.2101/1), for insisting, among other things, that the French courts should
obtain evidence through a request for international mutual legal assistance, and not demand
SGBGE’s managing directors to supply documents, which is contrary to the operating rules of any
commercial company. In that record, Mr. Bruno MASSEZ states that Mr. Teodoro NGUEMA
OBIANG MANGUE was a shareholder of SOMAGUI FORESTAL SL, not chief executive
(gérant).
Furthermore, neither of the orders for partial referral makes any mention of the record of the
questioning at first appearance on 30 July 2015 of Mr. Dominique BOURRINET, born on
14 October 1962 in the Grand Duchy of Luxembourg. Mr. Dominique [B]OURRINET was
General Counsel of the Société Générale Group (D.2801).
The French investigating judges notified the General Counsel of the Société Générale Group
of the allegations against that banking institution:
- 13 -
“for having in Paris, between January 2005 and December 2011, and in any event on
national territory 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 by allowing its subsidiary SGBGE to execute transfer orders from the
account opened in the books of that subsidiary in the name of Teodoro NGUEMA
OBIANG MANGUE for amounts estimated at approximately €65 million to the
United States, Switzerland or eurozone countries, whereas its Banque Hors France
Métropolitaine (“banking outside metropolitan France” — BHFM) department, which
supervised the activity of subsidiaries outside metropolitan France and was headed by
Jean-[Louis] MATTEI, a member of the executive committee from January 2008,
could not have been unaware that the account was funded through transfers originating
from the Treasury of Equatorial Guinea, and in particular the company under
Equatorial Guinean law SOMAGUI FORESTAL and the Malaysian company
SHIMMER, without these credit transactions appearing to be justified by any
legitimate economic, commercial or financial transaction allowing the transfer of
funds from public monies or of funds derived from breach of trust and corruption,
defined and punishable under Articles 121-2, 324-1 and 324-3 of the Penal Code”.
The French investigating judges informed Mr. Dominique BOURRINET of their intention to
bring proceedings against Société Générale, the legal person for whom he was the legal
representative, on the basis of the facts as recounted to him. Present was Mr. Jean REINHART,
counsel for the legal person, who was summoned to appear in a regular manner by registered fax,
with confirmation of receipt on 6 July 2015, and who was required to make himself available for
the proceedings no more than four days before this questioning.
One of the questions put to Mr. Dominique BOURRINET was as follows:
“Was Société Générale aware of the penalty 􀁿 a fine of US$2 million —
imposed in June 2004 by the American authorities against RIGGS bank following a
report by an American Senator drawing attention to suspect transactions involving
accounts held by key Equatorial Guinean figures in the United States, and what
measures were then taken to reduce the risk of money laundering via Société
Générale’s Equatorial Guinean subsidiary, SGBGE (D.2075/4)?”
Reply:
“My answer is yes, Société Générale was aware of the penalty imposed on
RIGGS relating to transactions with Equatorial Guinea. Société Générale, through
Mr. SCHRICKE, decided to send on mission to SGBGE the person responsible for
preventing money laundering, Mr. Charles [BLANDIGNERES], instructing him to
review the local set-up and to verify that money laundering was not taking place.
Following his visit, Mr. [BLANDIGNERES] drafted a report which showed there
to be no money laundering operations. Nevertheless, he did make a number of
recommendations in that report with a view to making the local anti-money laundering
system more robust.”
In the following question, noted in the record of the questioning of Société Générale Group’s
General Counsel, the French investigating judges acknowledged that transfers from SGBGE could
not be considered as money laundering. The question posed was worded as follows:
“Question: We are showing you the report drawn up by
Mr. Charles [BLANDIGNERES], head of the anti-money laundering department of
the Société Générale Group, under official seal SG BLAN, concerning the mission to
evaluate the AML risk in the subsidiary BHFM SGBGE and which was submitted
- 14 -
to Mr. Cris DAVIES, Mr. Jean-Noël MIRABEAU, Mr. Jean-Pierre LIGNOT,
Mr. Jean-Pierre LE GUENNEC and Mr. Marc MONTAIGU.
The frequency of unusual movements in the accounts of politically exposed
persons was noted and, although it is considered that money laundering by
means of these transactions has not been established, he recommended singling out
in the accounts, for these particular clients, the credit transactions linked to the transfer
of several million CFA francs from the State of Equatorial Guinea for which the
provenance of the funds was not in doubt.
However, in Mr. MATTEI’s note, also under official seal SG BLAN, which I
am showing you, submitted on 22 July 2005 to Mr. Christian DELMAS, the current
manager of SGBGE, relating to the mission conducted in May 2005 by the anti-money
laundering unit, Mr. MATTEI does not address this particular issue, confining himself
to making general recommendations.
What are your observations?”
TEN, in addition to the testimony of Mr. Dominique BOURRINET, the two orders also fail
to mention the testimony of Mr. Christian Marie François Maximilien Paul SCHRICKE (D.2075),
former member of the office of the French Minister of Justice, Alain Peyrefitte (until 1978), Head
of the OECD’s Legal Directorate in Paris in 1988, and [Secretary General] and Senior Executive
Vice-President of Société Générale from January 1998 to September 2009. He served as an adviser
to the CEO from September 2009 to January 2012 and has been a Member of the Board of the
French Financial Markets Authority since 2011.
During his questioning, Mr. SCHRICKE stated:
“I was alerted to this issue by the difficulties that arose in the United States
leading to Mr. BLANDIGNERES’ mission. Further to that report, I asked
Mr. MATTEI, where possible, to take all necessary measures to prevent those
individuals’ transactions via SGBGE from placing the SG Group in a situation that
would constitute a breach of its anti-money laundering obligations. In the years that
followed, I was again made aware, on a number of occasions, of various questionable
transactions, and was informed by Mr. MATTEI or one of his colleagues that it
had been difficult to take strengthening and supervision measures, and that the
specific problem of transactions in US dollars had been resolved, because another
French bank, NATIXIS, had agreed to be SGBGE’s correspondent bank in the
United States.”
With respect to Mr. Jean-Louis MATTEI (D.2072), head of the BHFM (banking outside
metropolitan France) department from 1 January 2008 to 31 July 2012, it is apparent from the
record of the French judicial police dated 28 April 2014 that the transfers from the Treasury
were the payments that the National Payment Committee used to make to foreign or local
companies with government contracts. In this regard, the record of the judicial police dated
28 April 2014 states the following:
“QUESTION: We draw your attention to the testimony of Mr. DELMAS, given
on our premises on 11 October 2013 and corroborated by his successors,
Mr. NAVARRO and Mr. NAHUM, concerning the way in which the account of
Teodoro NGUEMA OBIANG functioned. This is what he said: ‘a personal account
funded solely by transfers issued by the Treasury for a period of almost six months
after the Payment Committee had made all payments due to foreign or local
companies with government contracts via the BEAC.
- 15 -
These funds were held by the BEAC.
These funds came from the Treasury and were held by the BEAC. I do not see
how I could have refused them because the BEAC was my bank’s supervisor and the
origin of the funds was supposed to be verified by the bank receiving them.
In my view, the money that came from the Treasury was public money. It was
then used by Teodorin to make transfers to France. In those instances, he debited the
BEAC account which was used to credit the accounts of the beneficiaries in France via
the correspondent account at the Banque de France.’”
The two orders of the French investigating judges also fail to mention the questioning of
Mr. Charles BLANDIGNERES, adviser to the CEO and Head of the Compliance Unit of the
Société Générale Group since 18 November 2013, as noted in the record of the French judicial
police dated 28 January 2014 (D.2058). Asked about BHFM personnel who travelled regularly or
occasionally to Equatorial Guinea, he answered as follows:
“I know that J-L MATTEI went there on several occasions as part of his
functions.
He was accompanied by various people from BHFM, namely Axelle de Saint
Affrique, Gérald LACAZE and Patrick LE BUFFE.
That subsidiary was regularly inspected. It was not left to its own devices.”
What is more surprising is the omission from both orders for partial referral by the French
investigating judges of the record of the French judicial police dated 13 November 2013 of the
questioning of Mr. Pierre François NAHUM, manager of SGBGE from October 2009 to December
2010 (D.1573).
Asked which individuals at Société Générale knew of the existence of the bank accounts of
Teodoro NGUEMA OBIANG MANGUE and of the companies SOMAGUI and ELOBA and
[their] transactions, he replied:
“Patrick LE BUFFE as immediate superior, Mr. PIOT, supervisor, and
occasionally Jean-Louis MATTEI, head of the BHFM department.
My requests relating to the transfers made by Teodorin and his businesses
were addressed to those three individuals.
You are asking me if any of those transactions were refused by the
management. The answer is no.
I would point out that I requested explanations from Teodorin and tried to
obtain, where possible, as much information as I could.”
The record of Mr. NAHUM’s questioning (D.1573/9) also refers to the existence of five wire
transfers in April 200[5] — each in the amount of US$5,908,400 — sent from SGBGE and
ultimately received by an American bank, the FIRST BANK AMERICAN TRUST ACCOUNT
AT WACHOVIA. These funds transited through the Banque de France via the BEAC.
Mr. DELMAS’s testimony on those financial flows is as follows:
“I could not refuse the transfers which came from the Treasury of Equatorial
Guinea and which had been validated by the BEAC.
- 16 -
I wanted those funds to stay at the BEAC and to transit through the Banque de
France. I could have sent those transfers through another bank.
The Banque de France should have asked the BEAC about the origin of those
funds, since it knew full well because they came from the Treasury.
I declare before you that these five transfers totalling almost US$30 million
were sent from SGBGE to a beneficiary bank in the United States, transiting through
the BEAC and the Banque de France. The funds in question came from the Treasury”.
It is equally surprising to note the absence of any mention in the two orders for partial
referral by the French investigating judges of the record of the French judicial police dated
13 November 2013 of the questioning of Mr. Jean-Marie NAVARRO (D.1512), manager from
August-September 2007 to early November 2009.
Mr. Jean-Marie NAVARRO (D.1212/4) stated that:
“I would point out that all of the transactions which posed problems (economic
justification of financial flows) were referred back to the management of Société
Générale, to Mr. Patrick LE [BUFFE] and Mr. Emmanuel PIOT.
On other occasions we refused certain transactions, despite the BEAC’s request
for authorization. Those transactions concerned Teodorin and other individuals close
to the Government of Equatorial Guinea”.
Mr. Jean-Marie NAVARRO was also informed of the contents of an SGBGE receipt [copy
of a credit note], dated 5 November 2009 for an amount of US$330,144, for the account of its
client, SOMAGUI SL Malabo, and paid to the company GLOBAL EXECUTIVE CONSULTING
LLC (United States). When asked to explain, Mr. NAVARRO replied: “They are transactions
carried out and validated by Société Générale with the prior agreement of the BEAC.”
We will therefore mention the question put to Mr. Jean-Marie NAVARRO concerning his
knowledge of the system of commissions imposed by persons close to the country’s régime and
Teodoro NGUEMA OBIANG in particular. The response: “I had no knowledge of that system”.
The record of the French judicial police dated 16 April 2016 refers to the testimony of
Mr. Guy SERIEYS (D.1486), Ambassador Extraordinary and Plenipotentiary of France in
Equatorial Guinea from February 2008 to July 2011.
Asked whether he knew of any French companies working in Equatorial Guinea, he replied:
“French construction companies (BOUYGUES, VINCI, VEOLIA) were very
active in Equatorial Guinea. To give you an example, the sales revenue of those
companies grew from 200 to 800 million euros while I was there. France TELECOM
also had a presence there, as did AIR FRANCE, the ACCOR group, TOTAL
(distribution monopoly)”.
Asked what he knew about the system of commissions imposed by people close to the
régime and Teodoro NGUEMA OBIANG MANGUE in particular, he replied as follows:
“I know that some companies were refused access by the son because they
considered those requirements excessive. I did not have specific information relating
to that system of commissions put in place by the son of President OBIANG.”
ELEVEN, on 14 November 2013, the French judicial authorities sent a request for
international mutual assistance in criminal matters to the authorities of the Republic of Equatorial
- 17 -
Guinea for the investigation of possible offences committed by Mr. Teodoro NGUEMA OBIANG
MANGUE.
The authorities of Equatorial Guinea voluntarily accepted and executed that request on
4 March 2014, while reasserting the immunity enjoyed by Mr. Teodoro NGUEMA OBIANG
MANGUE as Second Vice-President of the Republic. On 18 March 2014, judges from the Malabo
Supreme Court, acting as investigating judges for the purpose of executing the request for mutual
legal assistance, notified Mr. Teodoro NGUEMA OBIANG MANGUE that he was being placed
under judicial examination in France for handling offences and for laundering funds acquired
through the commission, in the Republic of Equatorial Guinea, of the offences of misappropriation
of public funds, corruption, breach of trust and misuse of corporate assets, in this case for having
used commercial companies SOMAGUI FORESTAL, SOCAGE and EDUM as a screen for the
transfer of funds out of the Republic of Equatorial Guinea.
On 23 May 2016, the Financial Prosecutor requested, during the investigation, that
Mr. Teodoro NGUEMA OBIANG MANGUE be referred to the Paris Tribunal correctionnel.
On 5 September 2016, the French investigating judges rendered the order for partial referral
against Mr. Teodoro NGUEMA OBIANG MANGUE for the offences leading to his placement
under judicial examination.
The above-mentioned order for partial referral of 5 September 2016 was modified by the
order for partial referral of 2 December 2016.
TWELVE, despite the testimony of the aforementioned witnesses and the provision of
documents such as works contracts and forest concessions, according to the two orders for partial
referral, the managers of the “companies EDUM, SOCAGE and SOMAGUI FORESTAL are the
presumed perpetrators of the offences of misuse of corporate assets, misappropriation of public
funds, embezzlement and corruption” enabling the acquisition of movable and immovable assets in
Paris between 1997 and October 2011.
The two orders for partial referral state that it is “established that those funds derive
from predicate or ‘initial’ offences, in this instance from corruption, misappropriation of
public funds, breach of trust and misuse of corporate assets, which offences it must be
possible to characterize”.
According to page 33 of the order for partial referral before the Paris Tribunal correctionnel
dated 2 December 2016 and made by Mr. Roger LE LOIRE, Ms Charlotte BILGER and
Ms Stéphanie TACHEAU, senior judges in charge of the investigation at the Paris Tribunal de
grande instance, “[t]he investigations have also made it possible to determine the manner in which
he was able to finance his assets. It has thus been established that the funds used to pay for them
derived from offences committed in the Republic of Equatorial Guinea”. The same investigating
judges observed on page 34 of that order that:
“the investigation has produced insufficient evidence that any person has committed
acts of: complicity in or concealment of misappropriation of public funds, complicity
in laundering the proceeds of the offence of misuse of corporate assets, complicity in
and concealment of the misuse of corporate assets, of breach of trust, complicity in
and concealment of breach of trust, concealment of money laundering, which are
liable to criminal proceedings in France and which are cited in the referral,
pursuant to the complaint with civil-party application, the judgment of the Chambre
criminelle of the Cour de cassation of 9 November 2010 and subsequent submissions,
in respect of Equatorial Guinea”.
- 18 -
On page 32 of the 2 December 2016 order for partial referral before the Paris Tribunal
correctionnel, it is stated that:
“the judicial investigation has established that, while he was Minister for
Agriculture and Forestry of his country, Teodoro NGUEMA OBIANG MANGUE,
son of Teodoro OBIANG NGUEMA, President of the Republic of Equatorial Guinea,
acquired in France, between 2007 and 2011, either directly or through nominees or
shell companies, movable and immovable assets valued at several tens of millions of
euros. These assets have been identified, and some have been seized”.
The order for partial referral of the Paris Tribunal correctionnel of 2 December 2016 states
on page 30 that the anterior acts under investigation were as follows:
“for having . . . 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 misdemeanor, 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 funds of the firms EDUM, SOCAGE and
SOMAGUI FORESTAL”.
According to Mr. Robert LE LOIRE, Ms Charlotte BILGER and Ms Stéphanie TACHEAU,
senior judges in charge of the investigation at the Paris Tribunal de grande instance, acts were
committed on the territory of the Republic of Equatorial Guinea from 1997 to 2011, which could be
characterized as offences under the Penal Code in force and other applicable criminal legislation in
the Republic of Equatorial Guinea.
Mr. Robert LE LOIRE, Ms Charlotte BILGER and Ms Stéphanie TACHEAU, the senior
judges in charge of the investigation at the Paris Tribunal de grande instance, thus limit their
investigation to the period of 1997 to 2011, and this is the period that was the subject of the
investigations and the proceedings carried out by the Malabo Tribunal d’instruction No. [1] for
decision by this provincial court of Bioko-Norte.
THIRTEEN, the present orders were brought before the provincial court by the Malabo
Tribunal d’instruction No. 1 and, after verification of the formal requirements by the reporting
judge, the proceedings were referred to the Prosecutor for his provisional characterization; this step
was completed by the Public Prosecutor’s Office, which charged the defendants with perpetrating
the offences of misappropriation of public funds, embezzlement and misuse of corporate assets
under Articles 394 et seq. and 535 of the Penal Code, as well as under Article 891 of OHADA’s
Uniform Act on Commercial Companies and Economic Interest Groupings, and provisionally
requested that the defendants receive a principal penalty of a custodial sentence and be ordered to
pay a fine of triple or quadruple the amount cited, as well as compensation of 100 million CFA
francs to the State for injury suffered and court fees. Further to the provisional characterization
phase and the opinion of the reporting judge, the evidence submitted by the parties was admitted
and the decision to open proceedings was made. A public hearing was held on 8 June 2017, during
which the evidence presented by the parties was produced; after the examination and during the
final submissions stage, the Public Prosecutor’s Office did not uphold its provisional
characterization, requesting that the defendants be acquitted.
FOURTEEN, the evidence contained in the present orders, the legal evaluation of which
must influence the decision of this Court, has been set out below by subject-matter and is declared
by us to constitute
- 19 -
PROVEN FACTS
FIRST, this Bioke Norte provincial court considers it established that the commercial
companies SOMAGUI FORESTAL, SOCAGE and EDUM are legally constituted
Equatorial Guinean companies that are entered in the Trade and Companies Register, as
demonstrated by their articles of association and certificates of registration in the said Register,
which were furnished by their counsel during the evidence stage of the oral proceeding. The
articles of association of the above-mentioned companies can be found in the case file of the
present proceedings.
With regard to Mr. Jean-Louis MATTEI (D.2072), head of the BHFM (banking outside
metropolitan France) department from 1 January 2008 to 31 July 2012, it is apparent from the
record of the French judicial police dated 28 April 2014 that the transfers from the Treasury
were the payments which the National Payment Committee was making to foreign and local
companies with government contracts.
Former SGBGE managers Mr. DELMAS, Mr. NAVARRO and Mr. NAHUM acknowledged
that transfers were issued by the Treasury for a period of almost six months after the
Payment Committee had made all payments due to foreign or local companies with
government contracts via the BEAC.
SECOND, this Bioko-Norte provincial court also considers it established that the
commercial companies SOMAGUI FORESTAL, SOCAGE and EDUM purchased forest
concessions and signed contracts for construction work with GEPROYECTOS, the public company
authorized to sign and oversee State contracts. The forest concessions and construction contracts of
the above-mentioned companies can be found in the case file of the present proceedings.
Proof of the existence of those commercial companies can be found in the testimony of
Ms Ariane CHANTAL KOUAME (D.2118), partner of Mr. Roberto BERADI of 16 years, which
was taken during the French investigation. She declared:
“You are asking me whether Mr. TNOM has signing authority for ELOBA’s
bank accounts. The answer is no, only Mr. Roberto BERARDI, as chief executive
(gérant), and the Financial Director, Mr. Fofana BANDIE, from Côte d’Ivoire”.
Mr. BERARDI’s partner further stated that:
“Yes, I am familiar with the company SOMAGUI. It is another of Teodorin’s
companies. SOMAGUI is headquartered in Bata”.
THIRD, this Bioko-Norte provincial court also considers it established that no commissions
were paid to Mr. Teodoro NGUEMA OBIANG MANGUE by logging companies.
First should be cited the testimony given by Mr. Guy SERIEYS (D.1486), Ambassador
Extraordinary and Plenipotentiary of France in Equatorial Guinea from February 2008 to
July 2011, during the French investigation.
Asked what he knew about the system of commissions imposed by people close to the
régime and Teodoro NGUEMA OBIANG MANGUE in particular, he replied as follows:
“I know that some companies were refused access by the son because they
considered those requirements excessive. I did not have specific information relating
to that system of commissions put in place by the son of President OBIANG.”
- 20 -
In addition to the testimony of Ambassador Guy SERIEYS, reference should also be made to
the question put to Mr. Jean-Marie NAVARRO concerning his knowledge of the system of
commissions imposed by persons close to the country’s régime and Teodoro NGUEMA OBIANG
in particular. The response: “I had no knowledge of that system.”
It is surprising that neither the Ambassador of France nor the chief executive of SGBGE,
both of French nationality, had any knowledge of that system of commissions which is a
fundamental argument of the French judicial authorities.
Finally, the testimony of Mr. Mathaus Carl Jacques FRIEDBERG (D.1473), Vice President
of DELMAS, should be cited. In the record of the French judicial police dated 7 February 2013, he
stated: “Our primary market in Equatorial Guinea is the import of products. I would point out that
trade in okoume fell dramatically because of local laws put in place” when
Mr. Teodoro NGUEMA OBIANG MANGUE was Minister for the Environment, Water and
Forestry.
Finally, the testimony of Gervais MOUKIKI (D.1047), financial manager and (real)
administrator of the company SITSA should be cited. When asked whether the payments were sent
to Teodorin OBIANG’s account, he replied no on three occasions; since he could no longer
remember the name of the beneficiary of the commissions, the investigators helped him to recall
that the payments had been received by the company SOMAGUI FORESTAL.
FOURTH, this Bioko-Norte provincial court also considers established the lawfulness of the
international transfers sent by the Treasury via SGBGE.
As previously stated, these were transfers issued by the Treasury for a period of almost
six months after the Payment Committee had made all payments due to foreign or local
companies with government contracts via the BEAC.
Here it is worth citing, once again and in the first instance, the testimony
“of Mr. DELMAS, given on our premises on 11 October 2013 and corroborated by his
successors, Mr. NAVARRO and Mr. NAHUM, concerning the way in which the
account of Teodoro NGUEMA OBIANG functioned. This is what he said: ‘these
funds came from the Treasury and were held by the BEAC. I do not see how I could
have refused them because the BEAC was my bank’s supervisor and the origin of the
funds was supposed to be verified by the bank receiving them.
In my view, the money that came from the Treasury was public money. It was
then used by Teodorin to make transfers to France. In those instances, he debited the
BEAC account which was used to credit the accounts of the beneficiaries in France via
the correspondent account at the Banque de France.’”
It is also worth citing Mr. Delmas’ testimony regarding five wire transfers in April 200[5] —
each in the amount of US$5,908,400 — sent from SGBGE and ultimately received by an American
bank, the FIRST BANK AMERICAN TRUST ACCOUNT AT WACHOVIA. These funds
transited through the Banque de France via the BEAC.
“I could not refuse the transfers which came from the Treasury of Equatorial
Guinea and which had been validated by the BEAC.
I wanted those funds to stay at the BEAC and to transit through the Banque de
France. I could have sent those transfers through another bank.
- 21 -
The Banque de France should have asked the BEAC about the origin of those
funds, since it knew full well because they came from the Treasury.
I declare before you that these five transfers totalling almost US$30 million
were sent from SGBGE to a beneficiary bank in the United States, transiting through
the BEAC and the Banque de France. The funds in question came from the Treasury”.
FIFTH, one of the tactics employed by the French investigating judges to suppress the truth
is the omission in their two orders for referral of any mention of the record of the French judicial
police of the questioning on 13 November 2013 of Mr. Jean-Marie NAVARRO, manager from
August-September 2007 to early November 2009 (D.1512).
Mr. Jean-Marie NAVARRO (D.1212/4) stated that:
“I would point out that all of the transactions which posed problems (economic
justification of financial flows) were referred back to the management of Société
Générale, to Mr. Patrick LE [BUFFE] and Mr. Emmanuel PIOT.
On other occasions we refused certain transactions, despite the BEAC’s request
for authorization. Those transactions concerned Teodorin and other individuals close
to the Government of Equatorial Guinea”.
Mr. Jean-Marie NAVARRO was also informed of the contents of an SGBGE receipt [copy
of a credit note], dated 5 November 2009 and for an amount of US$330,144, for the account of its
client, SOMAGUI SL Malabo, and paid to the company GLOBAL EXECUTIVE CONSULTING
LLC (United States). When asked to explain, Mr. NAVARRO replied: “They are transactions
carried out and validated by Société Générale with the prior agreement of the BEAC.”
SIXTH, it is clear from the foregoing proven facts that the managers and/or chief executives
of the commercial companies SOMAGUI FORESTAL, SOCAGE and EDUM acted within their
remit as laid down by the legislation in force and their companies’ articles of association.
They were awarded forest concessions and State construction contracts. Once the contracts
had been signed and administrative orders for the commencement of construction work issued, they
received funds from the Treasury for carrying out the aforementioned construction work.
Following the completion of the construction work and at the end of the accounting period,
the managers and/or the chief executives implemented the decisions taken at the meeting of
shareholders, paying dividends to the accounts of the shareholder or shareholders, who were free to
invest their gains in any sector of activity.
With regard to Mr. Teodoro NGUEMA OBIANG MANGUE’s dealings with logging
companies, and with SHIMMER INTERNATIONAL of Malaysia in particular, it should be noted
that by Decree No. 22/1993 of 8 January, the 250,000,000-hectare forest concession granted to
Mr. Teodoro NGUEMA OBIANG in the Continental Region, was renewed.
The above-mentioned concession authorizes Mr. Teodoro NGUEMA OBIANG MANGUE
to cede to other logging companies all or part of the forest allocated to him.
It is evident that companies working on land allocated to Mr. Teodoro NGUEMA OBIANG
MANGUE must compensate him for the use of the forest awarded by tender.
Consequently, the amounts collected by Mr. Teodoro NGUEMA OBIANG MANGUE from
SHIMMER INTERNATIONAL are lawful pursuant to Decree No. 22/1993 of 8 January, which
- 22 -
authorizes the renewal of the 250,000,000-hectare forest concession allocated to
Mr. Teodoro NGUEMA OBIANG in the Continental Region.
To the foregoing facts, the following applies:
LEGAL GROUNDS
WHEREAS:
ONE, in order to hand down a conviction, it must be possible to give a full and clear account
of the facts which would demonstrate in the legal syllogism underpinning any judgment that the
decision has been influenced by the appropriate criminal legislation leading to a guilty verdict.
According to Article 10 of Law No. 5 dated 18 May, which repealed Organic Law
No. 10/1984 governing the judiciary, “the ordinary courts alone have jurisdiction to entertain and
decide on all types of case and ordinary law is applied by the courts and tribunals set out in this
Law, without prejudice to the jurisdictional powers recognized by the Basic Law or any other law
specific to any other organ”.
Article 14 of the same Law stipulates that
“the ordinary courts may also consider the causes of crime and offences committed
outside the national territory:
(a) when one of the constituent acts of the conduct in respect of which legal
proceedings are being pursued was perpetrated in Equatorial Guinea;
(b) when the offences in question infringe the constitutional order;
(c) when the crimes or offences were committed by authorities or official
representatives of Equatorial Guinea abroad, in the exercise of their functions;
(d) when the victim was an Equatorial Guinean national”.
Article 46.2 of the same Law provides that “the second division of the provincial court will
deliver a decision in cases handled by the tribunaux d’instruction of its province when delivery of a
decision does not fall within the remit of those courts”.
TWO, having recognized the jurisdiction of this court and its competence to rule on this
case, and as described in the section before the statement of the facts, we are led to state first that
the proceedings instituted were done so on the basis of the alleged offences of
MISAPPROPRIATION OF PUBLIC FUNDS, CORRUPTION, MISUSE OF CORPORATE
ASSETS AND BREACH OF TRUST.
Pursuant to Article 394 of the Penal Code in force in Equatorial Guinea, the offence of
misappropriation of public funds involves “[a] public official who diverts or allows a third party to
divert public monies or securities under his charge or at his disposal on account of his functions”.
It is clear from the provisions of the foregoing article that it applies only to official
representatives having committed the offence of misappropriating public funds; the persons under
investigation in the present case cannot be characterized as public officials, because they did not
transfer public monies but business assets to which they had access as the managers of commercial
- 23 -
companies. There is therefore no possibility of conviction under this charge on account of a failure
to meet the legal characterization.
It is also not possible to speak of corruption. Indeed, the Penal Code does not make provision
for corruption in its text, but for corrupt practices in Articles 385 et seq.
THREE, nor is it possible in this case to speak of the offence of misuse of corporate assets,
as set out in Article 891 of OHADA’s Uniform Act on Commercial Companies: in this regard,
Article 5 of the OHADA Treaty provides that that organization is responsible for the
characterization of criminal offences, and that it is for the States Parties to determine the penalties
to be applied. The Republic of Equatorial Guinea, like numerous other member States of OHADA,
has yet to adopt legislation punishing the offence of misuse of corporate assets. Pursuant to
Article 13, paragraph (s), of Equatorial Guinea’s Basic Law, it is thus not possible to be punished
for that offence given the requirement that criminal proceedings must be lawful; there is therefore
no possibility of conviction under this charge.
FOUR, Article 535 of the Penal Code in force in the Republic of Equatorial Guinea
stipulates that:
“Anyone who, to the detriment of another, misappropriates or diverts
funds, property or any other movable assets entrusted to him for contractual or
administrative purposes, or for any other purpose, which he has an obligation to
return or reimburse, or which he denies having received, shall be punished by the
penalties set out in Article 528 and, where applicable, Article 530.”
It is clear from this Article that, in order for breach of trust to exist, the following conditions
must be met: legitimate possession with an obligation to return or reimburse, where failure to do so
is in breach of the obligations undertaken for that purpose and where there is a desire not to make
restitution; these are all conditions which are not met in the present case, since the funds received
from the State were for executing contracts signed by that State.
FIVE, pursuant to the provisions of Article 19 of the Penal Code, civil responsibility cannot
be invoked without criminal responsibility.
[SIX], costs will be decided ex officio.
Having regard to Article 13 of the Basic Law of Equatorial Guinea, Articles 395 and 535 of
the Penal Code, Article 891 of the Uniform Act on Commercial Companies, Article 5 of the
OHADA Treaty, Article 740 of the Code of Criminal Procedure and other provisions with general
and relevant application,
ON BEHALF OF THE HEAD OF STATE,
FOR THESE REASONS,
WE MUST AND DO ACQUIT THE ACCUSED Amadeo OLUY NKISOGO,
Luis NDONG BAKALE BILOGO, Ambrosio OBURU EKONG MBASOGO, representatives of
EDUM SL, SOCAGE SL and SOMAGUI FORESTAL SL, OF THE OFFENCES OF
MISAPPROPRIATION OF PUBLIC FUNDS, CORRUPTION, EMBEZZLEMENT AND
MISUSE OF CORPORATE ASSETS ALLEGED AGAINST THEM.
- 24 -
The Parties will receive a copy of this judgment informing them that they may file an appeal
with the Supreme Court within the time-limits and in the form prescribed by law.
Such is the decision, a copy of which will be appended to the complaints, that we have made,
transmitted and signed.
In witness whereof
(Signed) THE REGISTRAR.
[Stamp]
___________
ANNEX 4
Letter from the President of the Republic of Equatorial Guinea to the President of the
French Republic, 19 January 2017
Letter from the President of Equatorial Guinea to the President
of the French Republic, 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 5
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 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.
___________
ANNEX 6
Embassy of Equatorial Guinea, Note Verbale No. 069/2017,
15 February 2017
Note Verbale No. 069/2017 from the Embassy of Equatorial Guinea to the French Ministry of
Foreign Affairs and International Development, 15 February 2017
[Translation]
The Embassy of the Republic of Equatorial Guinea in France presents its compliments to the
Ministry of Foreign Affairs and International Development (Department for Africa and the Indian
Ocean), and has the honour to remind it of the situation of uncertainty affecting this diplomatic
mission due to the lack of official recognition of its seat in Paris.
The Embassy wishes to remind the Ministry of Foreign Affairs and International
Development of the decision taken by the International Court of Justice, which stated in its Order
of 7 December 2016 that:
“France shall, pending a final decision in the case, 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.”
However, despite this matter being raised at the last two meetings with officials from the
Department for Africa and the Indian Ocean, and despite assurances from the Director that a Note
recognizing its current status would be sent to the diplomatic mission located at 42 avenue Foch, no
such Note has yet been received.
_________
ANNEX 7
Ministry of Foreign Affairs of France, Note Verbale No. 2017-158865, 2 March 2017
Note Verbale No. 158/865 from the Ministry of Foreign Affairs of France
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 8
Embassy of Equatorial Guinea, Note Verbale No. 262/2017,
12 June 2017
Note Verbale No. 262/2017 from the Embassy of Equatorial Guinea to the Ministry for
Europe and Foreign Affairs of France, 12 June 2017
[Translation]
The Embassy of the Republic of Equatorial Guinea in France presents its compliments to the
Ministry for Europe and Foreign Affairs (Protocol Department 􀁿 Diplomatic Privileges and
Immunities), and has the honour to inform it that the Government of the Republic of
Equatorial Guinea wishes to register the strongest possible protest against the hearings in the
criminal proceedings instituted before the French courts against its Vice-President in charge of
National Defence and State Security, which are to commence on 19 June 2017.
The Government of the Republic of Equatorial Guinea reaffirms that it is not waiving the
immunity ratione personae of its Vice-President.
The Embassy requests the Ministry to draw the present Note Verbale to the attention of the
competent French courts, in particular the 32nd Chambre correctionnelle of the Paris Tribunal
correctionnel.
___________
ANNEX 9
Embassy of Equatorial Guinea, Note Verbale No. 300/2017,
6 July 2017
Note Verbale No. 300/2017 from the Embassy of Equatorial Guinea to the Ministry for
Europe and Foreign Affairs of France, 6 July 2017
[Translation]
The Embassy of the Republic of Equatorial Guinea in France presents its compliments to the
Ministry for Europe and Foreign Affairs (Protocol Department 􀁿 Diplomatic Privileges and
Immunities), and has the honour to inform it that the Government of the Republic of
Equatorial Guinea wishes to register the strongest possible protest against the continuation of the
criminal proceedings in France against its Vice-President in charge of National Defence and State
Security, in breach of his jurisdictional immunity rationae personae.
The Government of the Republic of Equatorial Guinea expresses its very deep concern about
the position adopted by the Paris Public Prosecutor, an official answerable to the French
Government, who has requested that in addition to sentencing the Vice-President of the Republic of
Equatorial Guinea to three years’ imprisonment and a fine of €30 million, the court should
confiscate the building located at 42 avenue Foch housing the diplomatic mission of Equatorial
Guinea, in breach of the Order on the request for the indication of provisional measures made by
the International Court of Justice of 7 December 2016. The Government of the Republic of
Equatorial Guinea recalls that that Order, which is binding on France, obliges it to ensure the
protection and inviolability of the aforementioned building as premises of the diplomatic mission
of Equatorial Guinea.
[and that the President of the French Republic undertook, on behalf of France, to comply
with the terms of that Order].
[Handwritten note not translated]
___________
ANNEX 10
Ministry of Foreign Affairs of France, Note Verbale No. 2017-465600, 18 July 2017
Note Verbale No. 2017-465600 from the Ministry for Europe and Foreign Affairs of France to
the Embassy of Equatorial Guinea, 18 July 2017
[Translation]
The Ministry for Europe and Foreign Affairs, Protocol Department, presents its compliments
to the Embassy of the Republic of Equatorial Guinea and acknowledges receipt of the Embassy’s
Note Verbale No. 300/2017 dated 5 July 2017.
The Ministry wishes to recall that, in accordance with the Order made by the International
Court of Justice on 7 December 2016, France will ensure that, pending a final decision by the Court
in the case, the premises located at 42 avenue Foch enjoy “treatment equivalent to that required by
Article 22 of the Vienna Convention on Diplomatic Relations, in order to ensure their
inviolability”. It notes that the Court rejected the request for provisional measures made by
Equatorial Guinea aimed at obtaining the suspension of all the criminal proceedings brought
against Mr. Teodoro Nguema Obiang Mangue before the French courts.
The Ministry further recalls that the Public Prosecutor’s submissions do not constitute a
judicial decision, which will be rendered in the case by the Paris Tribunal correctionnel and will be
subject to appeal with suspensive effect.
In accordance with the principles governing criminal justice policy and the institution of
criminal proceedings in France, the Public Prosecutor does not receive any instructions in respect
of individual cases from the French Government.
___________
ANNEX 11
Interpretative notes for the official records (travaux préparatoires) of the negotiation of the
United Nations Convention against Transnational Organized Crime (A/55/383/Add.1)
(excerpts)
United Nations A/55/383/Add.1
General Assembly Distr.: General
3 November 2000
Original: English
00-73686 (E) 101100
`````````
Fifty-fifth session
Agenda item 105
Crime prevention and criminal justice
Report of the Ad Hoc Committee on the Elaboration of a
Convention against Transnational Organized Crime on the
work of its first to eleventh sessions
Addendum
Interpretative notes for the official records (travaux
préparatoires) of the negotiation of the United Nations
Convention against Transnational Organized Crime and the
Protocols thereto
I. Introduction
1. The present document contains interpretative notes that were discussed by the
Ad Hoc Committee on the Elaboration of a Convention against Transnational
Organized Crime throughout the process of negotiation of the draft Convention.
These notes will be included in the official records of the negotiation process, which
the Secretariat will prepare in accordance with standard practice. The Ad Hoc
Committee was informed by the Secretariat in document A/AC.254/33 of the nature
of the official records of the negotiation and of the practice regarding their drafting
and compilation. The present document is submitted to the General Assembly for
information purposes only. The Ad Hoc Committee took no formal action on these
notes and none is expected of the Assembly at its fifty-fifth session.
2
A/55/383/Add.1
II. Interpretative notes
A. Interpretative notes for the official records (travaux préparatoires)
of the negotiation of the United Nations Convention against
Transnational Organized Crime
Article 2: Use of terms
Subparagraph (a)
2. The travaux préparatoires should indicate that the inclusion of a specific
number of persons would not prejudice the rights of States Parties pursuant to article
34, paragraph 3.
3. The travaux préparatoires should indicate that the words “in order to obtain,
directly or indirectly, a financial or other material benefit” should be understood
broadly, to include, for example, crimes in which the predominant motivation may
be sexual gratification, such as the receipt or trade of materials by members of child
pornography rings, the trading of children by members of paedophile rings or costsharing
among ring members.
Subparagraph (c)
4. The travaux préparatoires should indicate that the term “structured group” is
to be used in a broad sense so as to include both groups with hierarchical or other
elaborate structure and non-hierarchical groups where the roles of the members of
the group need not be formally defined.
Subparagraph (f)
5. The travaux préparatoires should indicate that the terms “freezing” or
“seizure” as defined in article 2, subparagraph (f), can be found in articles 12 and 13
of the United Nations Convention against Transnational Organized Crime. The term
“search and seizure” appearing in article 18 should not be confused with “seizure”
in article 2. “Search and seizure” refers to the use of intrusive compulsory measures
by law enforcement authorities to obtain evidence for purposes of a criminal case.
The term “freezing” in article 18 is used to cover the concept defined as “freezing”
or “seizure” in article 2 and should be understood more broadly to include not only
property but also evidence.
Subparagraph (g)
6. The travaux préparatoires should indicate that when the domestic law of a
State Party requires the order of a court for confiscation, that court will be
considered the only competent authority for the purposes of this definition.
Article 3: Scope of application
7. During the negotiation of the Convention, the Ad Hoc Committee noted with
deep concern the growing links between transnational organized crime and terrorist
crimes, taking into account the Charter of the United Nations and the relevant
resolutions of the General Assembly. All States participating in the negotiations
expressed their determination to deny safe havens to those who engaged in
3
A/55/383/Add.1
transnational organized crime by prosecuting their crimes wherever they occurred
and by cooperating at the international level. The Ad Hoc Committee was also
strongly convinced that the Convention would constitute 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.
Finally, the Ad Hoc Committee was of the view that the Ad Hoc Committee
established by the General Assembly in its resolution 51/210 of 17 December 1996,
which was then beginning its deliberations with a view to the development of a
comprehensive convention on international terrorism, pursuant to Assembly
resolution 54/110 of 9 December 1999, should take into consideration the provisions
of the Convention.
Paragraph 2 (d)
8. The travaux préparatoires should indicate that the term “substantial effects” is
intended to cover situations where an offence has had a substantial consequential
adverse effect on another State Party, for example where the currency of one State
Party is counterfeited in another State Party and the organized criminal group has
put the counterfeit currency into global circulation.
Article 5: Criminalization of participation in an organized criminal group
9. The travaux préparatoires should indicate that the “other measures” mentioned
in articles 5, 6, 8 and 23 are additional to legislative measures and presuppose the
existence of a law.
Article 6: Criminalization of the laundering of the proceeds of crime
10. The travaux préparatoires should indicate that the terms “laundering of
proceeds of crime” and “money-laundering” are understood to be equivalent.
Paragraphs 1 (a) and (b)
11. The travaux préparatoires should show that the terms “concealing or
disguising” and “concealment or disguise” should be understood to include
preventing the discovery of the illicit origins of property.
Paragraph 2 (b)
12. The travaux préparatoires should include a note to the effect that the words
“associated with organized criminal groups” are intended to indicate criminal
activity of the type in which organized criminal groups engage.
Paragraph 2 (e)
13. In the travaux préparatoires it should be stated that subparagraph (e) takes into
account legal principles of several States where prosecution or punishment of the
same person for both the predicate offence and the money-laundering offence is not
permitted. Those States confirmed that they did not refuse extradition, mutual legal
assistance or cooperation for purposes of confiscation solely because the request
4
A/55/383/Add.1
was based on a money-laundering offence the predicate offence of which was
committed by the same person.
Article 7: Measures to combat money-laundering
Paragraph 1 (a)
14. The travaux préparatoires should indicate that the words “other bodies” may
be understood to include intermediaries, which in some jurisdictions may include
stockbroking firms, other securities dealers, currency exchange bureaux or currency
brokers.
15. The travaux préparatoires should indicate that the words “suspicious
transactions” may be understood to include unusual transactions that, by reason of
their amount, characteristics and frequency, are inconsistent with the customer’s
business activity, exceed the normally accepted parameters of the market or have no
clear legal basis and could constitute or be connected with unlawful activities in
general.
Paragraph 1 (b)
16. The travaux préparatoires should indicate that the establishment of a financial
intelligence unit called for by this subparagraph is intended for cases where such a
mechanism does not yet exist.
Paragraph 3
17. The travaux préparatoires should indicate that, during the negotiations, the
words “relevant initiatives of regional, interregional and multilateral organizations”
were understood to refer in particular to the forty recommendations of the Financial
Action Task Force on Money Laundering, as revised in 1996, and, in addition, to
other existing initiatives of regional, interregional and multilateral organizations
against money-laundering, such as the Caribbean Financial Action Task Force, the
Commonwealth, the Council of Europe, the Eastern and Southern African Anti-
Money-Laundering Group, the European Union and the Organization of American
States.
Article 8: Criminalization of corruption
Paragraph 1
18. The travaux préparatoires should indicate that the obligation under this article
was not intended to include the actions of a person who acted under such a degree of
duress or undue influence as to constitute a complete defence to the crime.
Paragraph 4
19. The travaux préparatoires should indicate that the concept of a person who
provides a public service applies to particular legal systems and that the
incorporation of the concept into the definition is intended to facilitate cooperation
between States Parties with that concept in their legal systems.
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Article 11: Prosecution, adjudication and sanctions
Paragraph 4
20. The travaux préparatoires should indicate that paragraph 4 would not oblige
States Parties to provide for early release or parole of imprisoned persons if their
legal systems did not provide for early release or parole.
Article 12: Confiscation and seizure
21. The travaux préparatoires should indicate that interpretation of article 12
should take into account the principle in international law that property belonging to
a foreign State and used for non-commercial purposes may not be confiscated except
with the consent of the foreign State. Furthermore, the travaux préparatoires should
indicate that it is not the intention of the Convention to restrict the rules that apply
to diplomatic or State immunity, including that of international organizations.
Paragraph 1 (b)
22. The travaux préparatoires should indicate that the words “used in or destined
for use in” are meant to signify an intention of such a nature that it may be viewed
as tantamount to an attempt to commit a crime.
Paragraph 5
23. The travaux préparatoires should indicate that the words “other benefits” are
intended to encompass material benefits, as well as legal rights and interests of an
enforceable nature, that are subject to confiscation.
Article 13: International cooperation for purposes of confiscation
24. The travaux préparatoires should indicate that references in this article to
article 12, paragraph 1, should be understood to include reference to article 12,
paragraphs 3-5.
Article 14: Disposal of confiscated proceeds of crime or property
25. The travaux préparatoires should indicate that, when feasible, States Parties
would examine whether it would be appropriate, in conformity with individual
guarantees embodied in their domestic law, to use confiscated assets to cover the
costs of assistance provided pursuant to article 24, paragraph 2.
Article 15: Jurisdiction
Paragraph 2 (a)
26. The travaux préparatoires should reflect the understanding that States Parties
should take into consideration the need to extend possible protection that might stem
from the establishment of jurisdiction to stateless persons who might be habitual or
permanent residents in their countries.
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Paragraph 5
27. The travaux préparatoires should indicate that an example of how useful
coordination between States Parties would be was the need to ensure that timesensitive
evidence was not lost.
Article 16: Extradition
Paragraph 2
28. The travaux préparatoires should indicate that the purpose of paragraph 2 is to
serve as an instrument for States Parties wishing to avail themselves of the facility it
provides. It is not intended to broaden the scope of the article unduly.
Paragraph 8
29. The travaux préparatoires should indicate that this paragraph should not be
interpreted as prejudicing in any way the fundamental legal rights of the defendant.
30. The travaux préparatoires should indicate that one example of implementation
of this paragraph would be speedy and simplified procedures of extradition, subject
to the domestic law of the requested State Party for the surrender of persons sought
for the purpose of extradition, subject to the agreement of the requested State Party
and the consent of the person in question. The consent, which should be expressed
voluntarily and in full awareness of the consequences, should be understood as
being in relation to the simplified procedures and not to the extradition itself.
Paragraph 10
31. The travaux préparatoires should reflect the general understanding that States
Parties should also take into consideration the need to eliminate safe havens for
offenders who commit heinous crimes in circumstances not covered by
paragraph 10. Several States indicated that such cases should be reduced and several
States stated that the principle of aut dedere aut judicare should be followed.
Paragraph 12
32. The travaux préparatoires should indicate that the action referred to in
paragraph 12 would be taken without prejudice to the principle of double jeopardy
(ne bis in idem).
Paragraph 14
33. The travaux préparatoires should indicate that the term “sex” refers to male
and female.
34. The travaux préparatoires should indicate that, at the informal consultations
held during the eighth session of the Ad Hoc Committee, the delegation of Italy
proposed the insertion after paragraph 8 of the following provision:
“Without prejudice to the use of other grounds for refusal, the requested
State may refuse to extradite on the ground that a decision has been issued in
absentia only if it is not proved that the case has been tried with the same
guarantees as when a defendant is present and he or she, having knowledge of
the trial, has deliberately avoided being arrested or has deliberately failed to
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appear at the trial. However, when such proof is not given, extradition may not
be refused if the requesting State gives assurance, deemed satisfactory by the
requested State, that the person whose extradition is sought shall be entitled to
a new trial protecting his or her rights of defence.”
In the discussion that followed, several delegations expressed serious concerns
about whether this provision would be compatible with the fundamental principles
of their respective legal systems. The delegation of Italy withdrew its proposal at the
ninth session of the Ad Hoc Committee on the understanding that, when considering
a request for extradition pursuant to a sentence issued in absentia, the requested
State Party would take into due consideration whether or not the person whose
extradition was sought had been sentenced following a fair trial, for example,
whether or not the defendant had been assured the same guarantees as he or she
would have enjoyed had he or she been present at the trial and had voluntarily
escaped from justice or failed to appear at the trial, or whether or not he or she was
entitled to a new trial.
Paragraph 16
35. The travaux préparatoires should indicate that the words “where appropriate”
in article 16, paragraph 16, are to be understood and interpreted in the spirit of full
cooperation and should not affect, to the extent possible, the obligatory nature of the
paragraph. The requested State Party shall, when applying this paragraph, give full
consideration to the need to bring offenders to justice through extradition
cooperation.
Article 18: Mutual legal assistance
Paragraph 2
36. The travaux préparatoires should indicate that the term “judicial proceedings”
in article 18, paragraph 2, refers to the matter for which mutual legal assistance is
requested and is not intended to be perceived as in any way prejudicing the
independence of the judiciary.
Paragraph 5
37. The travaux préparatoires should indicate that (a) when a State Party is
considering whether to spontaneously provide information of a particularly sensitive
nature or is considering placing strict restrictions on the use of information thus
provided, it is considered advisable for the State Party concerned to consult with the
potential receiving State beforehand; (b) when a State Party that receives
information under this provision already has similar information in its possession, it
is not obliged to comply with any restrictions imposed by the transmitting State.
Paragraph 8
38. The travaux préparatoires should indicate that this paragraph is not
inconsistent with paragraphs 17 and 21 of this article.
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Paragraph 10 (b)
39. The travaux préparatoires should indicate that, among the conditions to be
determined by States Parties for the transfer of a person, States Parties may agree
that the requested State Party may be present at witness testimony conducted in the
territory of the requesting State Party.
Paragraph 13
40. The travaux préparatoires should indicate that a central authority may be
different at different stages of the proceedings for which mutual legal assistance is
requested. Further, the travaux préparatoires should indicate that this paragraph is
not intended to create an impediment to countries having a central authority as
regards receiving requests or to a different central authority as regards making
requests.
Paragraph 18
41. The travaux préparatoires should indicate that the delegation of Italy made a
proposal on the matter covered by this paragraph (see document
A/AC.254/5/Add.23). During the debate on the proposal, it was pointed out that the
following part of it, not reflected in the text of the Convention, could be used by
States Parties as guidelines for the implementation of article 18, paragraph 18:
“(a) The judicial authority of the requested State Party shall be
responsible for the identification of the person to be heard and shall, on
conclusion of the hearing, draw up minutes indicating the date and place of the
hearing and any oath taken. The hearing shall be conducted without any
physical or mental pressure on the person questioned;
“(b) If the judicial authority of the requested State considers that during
the hearing the fundamental principles of the law of that State are infringed, he
or she has the authority to interrupt or, if possible, to take the necessary
measures to continue the hearing in accordance with those principles;
“(c) The person to be heard and the judicial authority of the requested
State shall be assisted by an interpreter as necessary;
“(d) The person to be heard may claim the right not to testify as
provided for by the domestic law of the requested State or of the requesting
State; the domestic law of the requested State applies to perjury;
“(e) All the costs of the video conference shall be borne by the
requesting State Party, which may also provide as necessary for technical
equipment.”
Paragraph 21 (d)
42. The travaux préparatoires should indicate that the provision of
paragraph 21 (d) of this article is not intended to encourage refusal of mutual
assistance for any reason, but is understood as raising the threshold to more essential
principles of domestic law of the requested State. The travaux préparatoires should
also indicate that the proposed clauses on grounds for refusal relating to the
prosecution or punishment of a person on account of that person’s sex, race,
religion, nationality or political opinions, as well as the political offence exception,
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were deleted because it was understood that they were sufficiently covered by the
words “essential interests” in paragraph 21 (b).
Paragraph 28
43. The travaux préparatoires should indicate that many of the costs arising in
connection with compliance with requests under article 18, paragraphs 10, 11
and 18, would generally be considered extraordinary in nature. Further, the travaux
préparatoires should indicate the understanding that developing countries may
encounter difficulties in meeting even some ordinary costs and should be provided
with appropriate assistance to enable them to meet the requirements of this article.
Article 20: Special investigative techniques
Paragraph 1
44. The travaux préparatoires should indicate that this paragraph does not imply
an obligation on States Parties to make provisions for the use of all the forms of
special investigative technique noted.
Article 22: Establishment of criminal record
45. The travaux préparatoires should indicate that the term “conviction” should be
understood to refer to a conviction no longer subject to any appeal.
Article 23: Criminalization of obstruction of justice
Subparagraph (a)
46. The travaux préparatoires should indicate that the term “proceeding” is
intended to cover all official governmental proceedings, which may include the pretrial
stage of a case.
47. The travaux préparatoires should indicate that it was understood that some
countries may not cover cases where a person has the right not to give evidence and
an undue advantage is provided for the exercise of that right.
Article 25: Assistance to and protection of victims
48. The travaux préparatoires should indicate that, while the purpose of this
article is to concentrate on the physical protection of victims, the Ad Hoc
Committee was cognizant of the need for protection of the rights of individuals as
accorded under applicable international law.
Article 26: Measures to enhance cooperation with law enforcement authorities
Paragraph 2
49. The travaux préparatoires should indicate that the term “mitigating
punishment” might include not only prescribed but also de facto mitigation of
punishment.
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Article 27: Law enforcement cooperation
Paragraph 1
50. The travaux préparatoires should indicate that the words “consistent with their
respective domestic legal and administrative systems” provide States Parties with
flexibility regarding the extent and manner of cooperation. For example, this
formulation enables States Parties to deny cooperation where it would be contrary to
their domestic laws or policies to provide the assistance requested.
Paragraph 1 (a)
51. The travaux préparatoires should indicate that States Parties will make their
own determination as to how best to ensure the secure and rapid exchange of
information. Many delegations endorsed the use of direct communication between
their different domestic law enforcement agencies and foreign counterparts.
However, States Parties that feel it more advisable to establish a central point of
contact to ensure efficiency would not be precluded from doing so.
Paragraph 3
52. The travaux préparatoires should indicate that the forms of modern technology
referred to in article 27, paragraph 3, include computers and telecommunications
networks.
Article 28: Collection, exchange and analysis of information on the nature of
organized crime
Paragraph 2
53. The travaux préparatoires should indicate that the mention of international and
regional organizations is intended to refer to all relevant organizations, including the
International Criminal Police Organization (Interpol), the Customs Cooperation
Council (also called the World Customs Organization) and the European Police
Office (Europol).
Article 29: Training and technical assistance
Paragraph 4
54. The travaux préparatoires should indicate that the mention of international and
regional organizations is intended to refer to all relevant organizations, including
Interpol, the World Customs Organization and Europol.
Article 31: Prevention
Paragraph 3
55. The travaux préparatoires should indicate that, in line with constitutional
principles of equality, there is no distinction intended between persons convicted of
offences covered by the Convention and persons convicted of other offences.
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Article 32: Conference of the Parties to the Convention
Paragraph 2
56. The travaux préparatoires should indicate that, in developing rules concerning
payment of its expenses, the Conference of the Parties to the Convention should
ensure that voluntary contributions are considered a source of funding.
Paragraph 3
57. The travaux préparatoires should state that, in discharging its tasks, the
Conference of the Parties should give due regard to the need to preserve the
confidentiality of certain information, given the nature of the fight against
transnational organized crime.
Paragraph 5
58. The travaux préparatoires should show that the Conference of the Parties
should take into account the need to foresee some regularity in the provision of the
information required. The travaux préparatoires should also indicate that the term
“administrative measures” is understood to be broad and to include information
about the extent to which legislation, policies and other relevant measures have been
implemented.
Article 34: Implementation of the Convention
Paragraph 2
59. The travaux préparatoires should state that the purpose of this paragraph is,
without altering the scope of application of the Convention as described in article 3,
to indicate unequivocally that the transnational element and the involvement of an
organized criminal group are not to be considered elements of those offences for
criminalization purposes. The paragraph is intended to indicate to States Parties that,
when implementing the Convention, they do not have to include in their
criminalization of laundering of criminal proceeds (article 6), corruption (article 8)
or obstruction of justice (article 23) the elements of transnationality and
involvement of an organized criminal group, nor in the criminalization in an
organized criminal group (article 5) the element of transnationality. This provision is
furthermore intended to ensure clarity for States Parties in connection with their
compliance with the criminalization articles of the Convention and is not intended to
have any impact on the interpretation of the cooperation articles of the Convention
(articles 16, 18 and 27).
Article 35: Settlement of disputes
Paragraph 1
60. The travaux préparatoires should state that the term “negotiation” is to be
understood in a broad sense to indicate an encouragement to States to exhaust all
avenues of peaceful settlement of disputes, including conciliation, mediation and
recourse to regional bodies.
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Article 36: Signature, ratification, acceptance, approval and accession
61. The travaux préparatoires should indicate that, while the Convention has no
specific provision on reservations, it is understood that the Vienna Convention on
the Law of Treaties of 19691 applies regarding reservations.
B. Interpretative notes for the official records (travaux préparatoires)
of the negotiation of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against
Transnational Organized Crime
Chapter I. General provisions
Article 1: Relation with the United Nations Convention against Transnational
Organized Crime
Paragraph 2
62. The travaux préparatoires should indicate that this paragraph was adopted on
the understanding that the words “mutatis mutandis” meant “with such
modifications as circumstances require” or “with the necessary modifications”.
Provisions of the United Nations Convention against Transnational Organized Crime
that are applied to the Protocol under this article would consequently be modified or
interpreted so as to have the same essential meaning or effect in the Protocol as in
the Convention.
Article 3: Use of terms
Subparagraph (a)
63. The travaux préparatoires should indicate that the reference to the abuse of a
position of vulnerability is understood to refer to any situation in which the person
involved has no real and acceptable alternative but to submit to the abuse involved.
64. The travaux préparatoires should indicate that the Protocol addresses the
exploitation of the prostitution of others and other forms of sexual exploitation only
in the context of trafficking in persons. The terms “exploitation of the prostitution of
others” or “other forms of sexual exploitation” are not defined in the Protocol,
which is therefore without prejudice to how States Parties address prostitution in
their respective domestic laws.
65. The travaux préparatoires should indicate that the removal of organs from
children with the consent of a parent or guardian for legitimate medical or
therapeutic reasons should not be considered exploitation.
66. The travaux préparatoires should indicate that where illegal adoption amounts
to a practice similar to slavery as defined in article 1, paragraph (d), of the
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery,2 it will also fall within the scope of the
Protocol.
ANNEX 12
Mechanism for the Review of Implementation of the United Nations Convention against
Corruption — Country review report of France
(excerpts)

ANNEX 13
Implementation of the United Nations Convention against Transnational Organized Crime:
updated information based on additional responses received from States for the first
reporting cycle (CTOC/COP/2005/2/Rev.1)
(excerpts)
United Nations CTOC/COP/2005/2/Rev.1
Conference of the Parties to the
United Nations Convention
against Transnational
Organized Crime
Distr.: General
9 August 2006
Original: English
V.06-56244 (E) 310806 010906
*0656244*
Second session
Vienna, 10-21 October 2005
Agenda item 2
Review of the implementation of the United Nations
Convention against Transnational Organized Crime
Implementation of the United Nations Convention against
Transnational Organized Crime: updated information
based on additional responses received from States for the
first reporting cycle
Analytical report of the Secretariat
Contents
Paragraphs Page
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-15 3
A. Legislative background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4 3
B. Mandate given by the Conference of the Parties at its first session and
subsequent reporting process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-9 3
C. Mandate given by the Conference of the Parties at its second session and
subsequent reporting process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12 4
D. Scope and structure of the report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15 5
II. Analysis of national legislation and measures reported in relation to the relevant
provisions of the United Nations Convention against Transnational Organized
Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-118 6
A. Criminalization requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-66 6
1. Criminalization of participation in an organized criminal group (art. 5) 16-21 6
2. Criminalization of the laundering of proceeds of crime (art. 6) . . . . . . . 22-29 7
3. Criminalization of corruption (art. 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-34 9
4. Criminalization of obstruction of justice (art. 23) . . . . . . . . . . . . . . . . . . 35-39 10
2
CTOC/COP/2005/2/Rev.1
5. Jurisdiction (art. 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-51 11
6. Liability of legal persons (art. 10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52-57 13
7. Confiscation and seizure (art. 12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-66 14
B. International cooperation requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67-109 16
1. Extradition (art. 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67-85 16
2. Mutual legal assistance (art. 18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-98 21
3. International cooperation for purposes of confiscation (art. 13) and
disposal of confiscated proceeds of crime or property (art. 14) . . . . . . . 99-109 23
C. Difficulties reported and technical assistance needs . . . . . . . . . . . . . . . . . . . . 110-118 26
1. Difficulties reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110-114 26
2. Need for technical assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115-118 27
III. Conclusions and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119-124 28
Annex. Status of responses to the questionnaire on the implementation of the
United Nations Convention against Transnational Organized Crime (first
reporting cycle of the Conference of the Parties) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11
CTOC/COP/2005/2/Rev.1
5. Jurisdiction (art. 15)
40. States parties are required by article 15 to establish their jurisdiction where the
offence involved was committed in their territory or aboard vessels flying their flag
or aircraft registered under their laws.
41. All reporting States confirmed their capacity to assert such jurisdiction, which
is mandatory under the Convention and in practice virtually universally established.
The only exceptions mentioned concerned diplomatic and other immunities granted
under generally accepted rules of international law as well as special arrangements
applying to foreign troops stationed in a State’s territory.
42. While the establishment of territorial jurisdiction is not expected to be
problematic, States should ensure that such territorial jurisdiction encompasses both
subjective and objective principles of territoriality, thus covering situations where
the act was commenced in the territory (and completed elsewhere) as well as
situations where it was completed in the territory. This is particularly relevant in
relation to transnational offences where the constituent elements of the crime are
frequently committed in more than one jurisdiction.
43. In addition to mandatory territorial jurisdiction, the Convention provides an
option to States parties of establishing extraterritorial jurisdiction on a number of
grounds.
44. The first ground relates to offences committed extraterritorially against a
national of the State party. Most States indicated that they were in a position to
assert their jurisdiction on such a ground. Sixteen States (Argentina, Barbados
(signatory), Canada, the Czech Republic (signatory), Ecuador, Egypt, Indonesia
(signatory), Kuwait, Kazakhstan, Lithuania, Malta, Myanmar, Namibia, the
Netherlands, New Zealand, the Philippines, Sweden and the United States) indicated
that they were not.
45. The second ground relates to offences committed abroad by nationals or
stateless persons having their habitual residence in the State party’s territory. Of all
the reporting States, only Argentina, Barbados (signatory), Canada, Malta,
the Philippines and the United States reported that they had not established
jurisdiction on the basis of nationality. A number of States emphasized that dual
criminality was required to establish such jurisdiction. France indicated that
establishment of jurisdiction on this ground would not apply to stateless residents.
In Peru, jurisdiction could be established when the suspected offender entered
Peruvian territory after committing the crime abroad. Malaysia indicated that
extraterritorial jurisdiction did not apply to all offences under the Convention, but
only to corruption and money-laundering offences.
46. The third optional ground for the establishment of extraterritorial jurisdiction
is based on the so-called “effects” principle and concerns offences committed
outside a State party’s territory with a view to the commission of an offence within
that territory. Offences to which such jurisdiction may apply are offences of
participation in an organized criminal group (established pursuant to art. 5, para. 1)
committed abroad with a view to committing a serious crime on the party’s territory
and money-laundering ancillary offences (established pursuant to art. 6,
para. 1 (b) (ii)) with a view to committing a money-laundering offence in the
territory.
ANNEX 14
Embassy of France in Equatorial Guinea, Note Verbale No. CHAN/92/2014,
13 February 2014
Note Verbale No. CHAN/92/2014 from the Embassy of France in Equatorial Guinea to the
Ministry of Foreign Affairs and Co-operation of Equatorial Guinea, 13 February 2014
[Translation]
The Embassy of France presents its compliments to the Ministry of Foreign Affairs and
Co-operation of the Republic of Equatorial Guinea and has the honour to transmit to it the
international letter rogatory, and its certified translation, sent on 14 November 2013 by
Mr. Roger LE LOIRE, senior judge in charge of the investigation at the Paris Tribunal de grande
instance, to the judicial authorities of the Republic of Equatorial Guinea, as part of the
investigation into Franco CANTAFIO, Martine NICOLAS (née DUMONT), Robert FAURE, and
Teodoro NGUEMA OBIANG MANGUE, for misappropriation of public funds, misuse of
corporate assets, breach of trust, corruption, laundering the proceedings of each of these offences,
handling offences and complicity.
Copies of a number of pleadings (three volumes) to assist with the execution of this legal
request are appended hereto.
In the absence of a treaty on mutual legal assistance in criminal matters between France and
Equatorial Guinea, this request is made on the basis of the United Nations Convention against
Transnational Organized Crime, adopted in New York on 15 November 2000 and known as the
“Palermo Convention”.
The Embassy of France, charged with transmitting this international letter rogatory, would
be grateful if the Ministry of Foreign and Affairs and Co-operation of the Republic of Equatorial
Guinea would acknowledge receipt of these documents and pleadings annexed, and keep it
informed of any action taken on this request of the French judicial authorities.
Annexes:
􀁿 Request for international mutual assistance in criminal matters: original, plus a certified
translation into Spanish.
􀁿 Questions for Mr. Teodoro NGUEMA OBIANG MANGUE, with a certified translation into
Spanish.
􀁿 Copies of several pleadings (thee volumes), a descriptive list of which is appended.
___________
List of pleadings transmitted with the request for international mutual assistance
in criminal matters
[List not translated]
___________
ANNEX 15
Request for international mutual assistance in criminal matters of the Paris Tribunal de
grande instance, 14 November 2013 (excerpts)
Request for international mutual assistance in criminal matters, 14 November 2013
[Translation]
PARIS COUR D’APPEL
PARIS TRIBUNAL DE GRANDE INSTANCE
Prosecution No.: 0833796017
Investigation No.: 2292/10/12
THE FRENCH REPUBLIC
REQUEST FOR INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
We, Roger LE LOIRE and René GROUMAN, senior judges in charge of the investigation at
the Paris Tribunal de Grande Instance,
Having regard to the investigation of:
􀁿 Mr. Teodoro NGUEMA OBIANG MANGUE
Born 25 June 1969 in Akoakan Esangui, Equatorial Guinea
Who is the subject of an arrest warrant issued on 11 July 2012 which led to a record of
failed attempts to serve the warrant being drawn up by the OCRGDF (serious financial crime
squad) on 12 July 2012,
􀁿 Mr. Franco CANTAFIO
Born 27 September 1963 in Saint Maurice (Val-de-Marne),
􀁿 Ms Martine NICOLAS, née DUMONT
Born 19 August 1946 in Paris (12th arrondissement),
􀁿 Mr. Robert FAURE
Born 15 August 1944 in Alger,
Persons under judicial examination
CHARACTERIZATION: misappropriation of public funds, misuse of corporate assets,
breach of trust, corruption, laundering the proceeds of each of these offences, handling offences
and complicity, acts defined and punishable under Articles 321-1, 321-3, 321-4, 321-9, 321-10,
324-1, 324-3, 324-4, 324-5, 324-6, 324-7, 324-8, 432-15, 314-1, 445-1 and 445-3 of the Penal
Code, Article L 241-3 of the Commercial Code, and Articles 121-6 and 121-7 of the Penal Code
with regard to complicity;
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Having regard, in particular, to Articles 81, 151, 152 and 154 of the Code of Criminal
Procedure;
Having regard to the United Nations Convention against Transnational Organized Crime,
[which was adopted] in New York on 15 November 2000 and entered into force on 7 February
2003;
We have the honour to request the competent judicial authorities of the Republic of
Equatorial Guinea to conduct the measures set out below, and to return the present international
letter rogatory, duly certified at the earliest opportunity.
Done at Paris, 14 November 2013
The senior judges in charge of the investigation
(Signed) Roger LE LOIRE
(Signed) René GROUMAN.
[signatures and seal]
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