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International experts - Published: 09 November 2017
Frederick T. Davis
Of Counsel, Debevoise & Plimpton - New York & Paris

After an almost decade-long campaign by anti-corruption groups demanding that France act against corrupt foreign leaders suspected of stashing their “ill-gotten gains” in Europe, the trial of Teodorin Obiang Nguema, son of Equatorial Guinea’s President, Teodoro Obiang Nguema Mbasogo, got underway in Paris in 2017 and resulted in his conviction in October. Equatorial Guinea is a resource-rich country that also has some of the most widespread poverty in the world.

Yet, Teodorin, who is currently Vice President, owned vast real estate in Paris, a private jet, a yacht, and a fleet of vintage and modern automobiles, among his other known assets. His conviction is a limited but nonetheless important step forward in the fight against corruption, and suggests the utility of procedures that would generally be considered unavailable in the United States.

How did the case come to the attention of prosecutors?

The case against Teodorin was primarily the result of diligent efforts by NGOs, including the French anticorruption group Sherpa and the French chapter of Transparency International (TI). In 2007, Sherpa and others filed a complaint with the Public Prosecutor in Paris alleging that the ruling families of Equatorial Guinea, Angola, Burkina Faso and the Republic of the Congo held assets in France that were not the fruits of their official salaries. After a brief investigation, the Public Prosecutor dismissed the claims. Several of the NGOs, joined in some instances by citizens of the countries in question, then used a French criminal procedure to launch a civil action (constitution de partie civile) to cause a criminal investigation by an investigating magistrate (juge d’instruction). This effort was opposed by the Public Prosecutor. A Court of Appeals initially upheld the prosecutor’s position and dismissed TI’s intervention, but in an important 2010 ruling, the French Supreme Court (Cour de Cassation) ruled that TI was a proper civil party (partie civile) authorized to instigate the criminal investigation. Ultimately Teodorin was bound over for trial, now with the support of the Public Prosecutor (as well as the continued active participation of TI and other NGOs).

Would this development have been possible in the United States?

No. The procedures that brought Obiang to trial are interesting because they highlight at least four important differences between French and US criminal procedures, and more generally illustrate several legal challenges, in countries like the United States, that often hinder the worldwide fight against transnational corruption:

  • First, French law embraces a form of so-called “universal jurisdiction,” under which a person found in France can be prosecuted for certain kinds of acts committed outside of the country if they violate commonly accepted international criminal principles. France’s law on universal jurisdiction was most recently revised in 2010.
  • Second, French law on overseas bribery – adopted in 2000 following the country’s accession to the OECD Anti-Bribery Convention– criminalizes both “active” and “passive” bribery – that is, both the giver and the recipient of a bribe can be prosecuted. While the UK Bribery Act, among others, criminalizes both active and passive bribery, the US Foreign Corrupt Practices Act (FCPA) only addresses active bribery—that is, bribe-giving—rather than bribe taking. Presuming a French court has jurisdiction over a defendant like Teodorin, he can be prosecuted for taking bribes.
  • Third, France, along with some other countries in Europe and elsewhere, gives presumed victims the formal standing of civil parties (parties civiles), which means that they can be actual parties to a criminal investigation and trial. They can commence an investigation even if (as here) opposed by the public prosecutor; they participate in all aspects of the investigation (and through their attorneys are given access to the official investigative file); they are parties at the trial; and they can seek and be awarded damages at the same trial that considers the guilt of the accused.
  • Fourth, the French Code of Criminal Procedure provides that in certain instances, found by the Supreme Court to be applicable in this case, a pre-existing NGO with a stated interest in a subject matter may have standing to act as a partie civile in – and thus be a formal party to – a criminal proceeding.

How do these procedures highlight problems with current efforts to combat overseas bribery from an American perspective?

  • First, virtually all of overseas bribery prosecutions in industrialized countries focus on the so-called “supply side” of corruption, that is, on bribe givers but not recipients. As noted, the FCPA only criminalizes giving or offering a bribe, not taking one; and even in those countries where “passive bribery” is criminalized, overseas passive corruption is rarely prosecuted.
  • Second, the French partie civileprocedure, enhanced by organizational standing provisions, provides a real and important voice to victims of corruption. Bribery is not a victimless crime: it deprives citizens of the affected countries of public funds that are theirs, and undermines the legitimacy of government. Organizational standing is particularly significant when essentially the entire population is a “victim.” Yet victims have no formal role in US bribery prosecutions, and are rarely even heard.
  • Third, victims in developing countries often have little or no ability to pursue criminal or other remedies in their own jurisdiction; their active participation in the criminal pursuit of corrupt leaders in countries with some form of “universal jurisdiction” may be their only means of obtaining justice.

Are there any other instances of civil society coming together to pursue international corruption?

Yes, the case against Obiang is a visible step toward a more participatory form of international criminal justice, but it is hardly the first. In May 2016 a Special Chamber sitting in Senegal convicted the former president of Chad, Hissène Habré, of crimes that he committed in the 1980s, when he was President. (The evidence showed that he had a hand in the murder of tens of thousands, in systematic rape, and in widespread torture, as well as in rapacious looting of Chad’s treasury.) The Habré trial has appropriately been praised as a model for African justice, but it was also the result of more than a decade of hard work by Chadian victim associations, supported by international NGOs such as Human Rights Watch, exercising their procedural rights as parties civiles–without which it is almost certain that no prosecution would have occurred.

There is occasional debate about whether corruption, or at least so-called “grand corruption,” should be the object of formal international prosecution at a tribunal modeled on the International Criminal Court. Yet ICC proceedings have been notably cumbersome and slow, with few results. Universal jurisdiction trials such as in the current Obiang case, or essentially ad hoc proceedings such as the prosecution of Habré in Senegal, propelled by victim participation, may offer a more flexible and practical approach.

What is the significance of the Obiang conviction?

The criminal conviction of Teodorin Obiang (which is subject to an appeal) was a hugely important and symbolically significant step; but much remains to be done. One cannot underestimate the value of the fact that victims of high level state corruption were able to bring a powerful malefactor to justice, and to have a hand in his being convicted of corruption-related crimes. This was the first time in history that a court exercising universal jurisdiction has convicted an incumbent senior official for acts committed in his own country. This success can only encourage others to pursue such remedies in countries – and there are many – where corruption remains generally unpunished. On the other hand, the Court tempered its judgment in important ways. In addition to the conviction, it ordered the seizure of much of the €150 million in assets apparently owned by Obiang in France, but part of this order was stayed pending the resolution of related issues pending before the International Court of Justice. Further, it suspended (sursis) the three-year sentence as well as the € 30 million fine imposed on Obiang such that Obiang will avoid both if he stays out of trouble for five years. As the presiding judge made clear, the sentence was viewed as a warning that future kleptocrats are now on notice and will not be treated so leniently.


Frederick T. Davis

Of counsel, Debevoise & Plimpton LLP

Paris and New York

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

November 2017


Frederick T. Davis is Of Counsel with Debevoise & Plimpton LLP in its Paris and New York offices. He is a former US federal prosecutor and member of the Paris and New York State bars.

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