The accused in this case, Mr. Teodoro Nguema Obiang Mangue, is the Second Vice-President of Equatorial Guinea and the son of Teodoro Obiang Nguema Mbasogo, the President of Equatorial Guinea. He was accused of misappropriating state funds to support his lifestyle and failing to produce a ‘convincing justification of the origin of his fortune’, giving that his annual salary was under USD 100,000. He was accused of stealing USD 115 million while he was Minister of Forestry and Agriculture and taking the proceeds from a tax that he levied on wood sales.
The proceedings against the accused originated in a complaint lodged by Transparency International France with the Paris public prosecutor in 2008. This complaint led to a criminal investigation of the accused. Notably, allegations of money laundering and corruption against the accused and his family had previously been investigated by the United States Senate, and a settlement of USD 30 million had been reached with the United States Department of Justice in a related case.
The investigation of the accused was completed in 2016 and the Paris prosecutor laid criminal charges against the accused for money laundering. Seizure of the accused’s property in France was also ordered, including a building at 42 Avenue Foch in Paris. Following this order, Equatorial Guinea brought a case against France in the International Court of Justice seeking a suspension of the criminal proceedings and preventing France from seizing the building on the basis of diplomatic inviolability.
Equatorial Guinea
FranceLuxury vehicles, furnishings as well as other assets and movable property were seized from the premises at 42 Avenue Foch in Paris and neighbouring parking lots. Additionally, the confiscation of the building at 42 Avenue Foch was ordered by the Tribunal correctionnel de Paris, but not executed due to the proceedings before the ICJ.
Equatorial GuineaFranceFollowing the investigation into the accused and the issuance of an arrest warrant, French judicial authorities – since they were unable to question the accused – requested mutual legal assistance in criminal matters from Equatorial Guinean judicial authorities under Article 18 of the Organized Crime Convention (in the judgment referred to as “Palermo Convention”) on 14 November 2013. The request asked the Requested State to transmit to Mr. Teodoro Nguema Obiang Mangue a summons of first appearance before court.
The request was accepted by the Requested State on 4 March 2014 and was executed shortly thereafter. On 18 March 2014, a hearing was held in Malabo, Equatorial Guinea, in which the competent French judges were able to question the accused via videoconference. The accused, however, declined to answer on the basis of immunity. Subsequently, the accused was indicted by the French judiciary for money-laundering.
Tribunal correctionnel de Paris
After the Chambre de l’instruction de la Cour d’appel de Paris had upheld the indictment and Mr. Teodoro Nguema Obiang Mangue had been appointed as Vice-President of Equatorial Guinea in charge of National Defence and Security, the investigating judges of the Tribunal de grande instance de Paris ordered the referral of the case for trial before the Tribunal correctionnel de Paris.
On 21 September 2016, the Financial Prosecutor ordered the accused to appear before court on 24 October 2016, where – according to the Assistant Financial Prosecutor – a procedural issue was raised, namely that the operative part of the referral did not mention the relevant criminalization and punishment provisions. Therefore, the court sent the proceedings back to the Public Prosecutor’s Office to return to the investigating judges so they could regularize the referral order. The court further stated that the trial hearings would be held from 2 to 12 January 2017.
On 2 January 2017, a hearing on the merits took place in absence of the accused, who was represented by his counsel. At the request of the defence, the start of the trial was deferred to 19 June 2017. In addition, the court held that any confiscation measure regarding the building at 42 Avenue Foch could not be executed until the end of the international proceedings.
The hearings on the merits were held before the Tribunal correctionnel de Paris from 19 June to 6 July 2017. The judgment was delivered on 27 October 2017. Mr. Teodoro Nguema Obiang Mangue was found guilty of money laundering offences committed in France between 1997 and October 2011 and was sentenced to a three-year suspended prison term and a suspended fine of EUR 30 million. The court further ordered the confiscation of the building at 42 Avenue Foch as well as all assets seized during the investigation. This could, however, not be executed due to ongoing international proceedings.
Subsequently, Mr. Teodoro Nguema Obiang Mangue appealed against the conviction.
International Court of Justice
On 13 June 2016, Equatorial Guinea filed in the registry of the ICJ an application instituting proceedings against France regarding the immunity from jurisdiction of the Second Vice-President and the legal status of the building at 42 Avenue Foch in Paris, both as premises of the diplomatic mission and as State property.
Two aspects of the proceedings in France raised questions of international law according to Equatorial Guinea. First, it took the view that the search and eventual attachment of the building at 42 Avenue Foch, as well as the associated seizure of certain items, breached the Vienna Convention on Diplomatic Relations because the building was being used for its diplomatic mission. Second, the French courts had denied the ratione personae immunity from jurisdiction that Mr. Obiang Mangue was entitled to as (since 2012) Second Vice-President of Equatorial Guinea in charge of defence and state security and that this violated Article 4 of the Palermo Convention.
This proceeding before the ICJ concerned a decision on provisional measures at the request of Equatorial Guinea. The State requested:
(a) that France suspend all the criminal proceedings brought against the Vice-President of the Republic of Equatorial Guinea, and refrain from launching new proceedings against him, which might aggravate or extend the dispute submitted to the Court;
(b) that France ensure that the building located at 42 Avenue Foch in Paris is treated as premises of Equatorial Guinea's diplomatic mission in France and, in particular, assure its inviolability, and that those premises, together with their furnishings and other property thereon, or previously thereon, are protected from any intrusion or damage, any search, requisition, attachment or any other measure of constraint;
(c) that France refrain from taking any other measure that might cause prejudice to the rights claimed by Equatorial Guinea and/or aggravate or extend the dispute submitted to the Court, or compromise the implementation of any decision which the Court might render.
In response, France requested the rejection of all provisional measures and the removal of the case from the list.
The Court found no prima facie jurisdiction to entertain the alleged violations of the Organized Crime Convention. However, the Court found that it had prima facie jurisdiction under Article I of the Optional Protocol to the Vienna Convention and could examine the request for provisional measures regarding inviolability of the building in Paris. The Court unanimously concluded that, pending a final decision in the case, the premises presented as housing the diplomatic mission of Equatorial Guinea at 42 Avenue Foch in Paris should enjoy treatment equivalent to that required by Article 22 of the Vienna Convention and that the execution of any measure of confiscation is to be stayed until the Court reaches its final decision. The Court further unanimously rejected France's request to remove the case from the General List.
International Court of Justice
When filing the application, Equatorial Guinea’s argument was two-pronged: first, the claim relating to immunities of states and state officials fell within the provisions of Article 4; second, the domestic legislation of France had overextended jurisdiction in a manner inconsistent with Article 4, when read in conjunction with certain other provisions.
France made three preliminary objections: two related to the Court's jurisdiction on the basis of, respectively, United Nations Convention Against Transnational Organized Crime (UNTOC) and the Optional Protocol to the Vienna Convention on Diplomatic Protection (VCDR) concerning the Compulsory Settlement of Disputes (Optional Protocol), and the third challenged admissibility for abuse of process and abuse of rights. During this proceeding, these preliminary objections were examined.
The Court, by eleven votes to four, upheld France's first objection and found that Article 4(1), while imposing an obligation, did “not refer to the customary international rules, including State immunity, that derive from sovereign equality but to the principle of sovereign equality itself”. The Court further found that Article 4(2), and indeed the whole Palermo Convention, did “not refer to the customary international rules on immunities of States and State officials”. The Court went on to state that the Convention helped “co-ordinate but […] not direct the actions of States parties in the exercise of their domestic jurisdiction” and that the “scope of action taken in the implementation of the Convention is therefore limited”. Four judges disagreed and stated in a joint dissenting opinion, that Article 4(1) was to be read as “compendious way of saying that acts, such as a breach of foreign State immunity, are a breach of the principle of sovereign equality of States” and that the majority had “failed to recognize the overarching and pervasive effect” of the Article.
France further objected to the Court's jurisdiction under the Optional Protocol, claiming that the inviolability regime of Article 22 of the VCDR can only be applied and implemented regarding the building at 42 Avenue Foch in Paris “if it has previously been established that the premises in question do indeed enjoy diplomatic status”. The Court unanimously rejected this objection and declared that it has jurisdiction “in so far as it concerns the status of the building located at 42 Avenue Foch in Paris as premises of the mission”, since a dispute regarding the status of the building and whether it (including its furnishings) is to be qualified as diplomatic mission, fell within the scope of the VCDR.
Regarding the third and final preliminary objection, France stated that “Equatorial Guinea’s conduct was an abuse of rights and that its seisin of the Court was an abuse of process”. Concerning the abuse of rights, France referred to “inconsistencies in correspondence sent and statements made by Equatorial Guinea regarding the date of acquisition by Equatorial Guinea of the building at 42 Avenue Foch in Paris and the use to which it was put” as well as to the “increasingly eminent political positions” of the accused. France argued that it was Equatorial Guinea’s objective to shield the accused and the building in question from criminal proceedings. Concerning the abuse of process, France argued that the application was submitted “in the manifest absence of any legal remedy and with the aim of covering abuses of rights committed in other respects”. The Court differentiated between abuse of process, which “goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings”, and abuse of rights, which “cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits”. Hence, at this stage, only the abuse of process was examined, which the Court found can only be upheld in exceptional circumstances. However, the majority of the Court did not find the present case to be such an exceptional circumstance and – by fifteen votes to one – dismissed the third preliminary objection.
Money-laundering
The accused was sentenced to a three-year suspended prison term.
The accused was sentenced to pay a suspended fine of €30 million.
International Court of Justice
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016, p. 1148
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018, p. 292
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Joint Dissenting Opinion of Vice-President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka, I.C.J Reports 2018, p. 340
U.S Department of Justice, "Second Vice President of Equatorial Guinea Agrees to Relinquish More Than $30 Million of Assets Purchased with Corruption Proceeds", Press release (10 October 2014)
In this case, Equatorial Guinea relied on Article 4 of the Organized Crime Convention (“Protection of sovereignty”), and particularly article 4(1), according to which: “States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and integrity of States and that of non-intervention in the domestic affairs of other States”. The aspect of disagreement for which Article 4 was invoked, was the question whether the defendant was immune from jurisdiction as a consequence of the principles referred to in the Article. The second question relevant in the case was about criminalization of money laundering by France and its establishment of jurisdiction over that offence.
Regarding the first question, Equatorial Guinea argued that the claim relating to immunities of States and State officials fell within the provisions of Article 4. In relation to the second question, Equatorial Guinea argued that the domestic legislation of France had overextended jurisdiction in a manner inconsistent with Article 4, when read in conjunction with certain other provisions. On the question of jurisdiction under the Organized Crime Convention, the Court, having reviewed a variety of interpretative materials prepared by UNODC, upheld France's objection and found that Article 4(1), while imposing an obligation, did “not refer to the customary international rules, including State immunity, that derived from sovereign equality but to the principle of sovereign equality itself.” The particular provisions of the Organized Crime Convention helped to coordinate but did not direct the actions of States Parties. On the second question of the overextended jurisdiction on criminalization of money laundering by France, the Court concluded that it lacked jurisdiction over the matter as the alleged violations complained of by Equatorial Guinea did not fall within the provisions of the Organized Crime Convention.