(This post is also available in French)

On the 10th of February this year, the Appeal Court of Paris upheld the conviction of Teodorin N. Obiang, who is vice-president of Equatorial Guinea, where his father is president. This conviction resulted from charges brought against him in 2008 by Transparency International France, with the assistance of the NGO Sherpa.

By upholding the conviction, a historic decision has been made. Earlier, in 2017, for the first time in France, the justice system convicted a top-level official serving in a foreign government for laundering of embezzlement of public funds and laundering of proceeds of corruption. Obiang received a three-year prison sentence and a 30 million euro fine, both suspended. In addition, all his seized assets were confiscated.

And now the Appeal Court has gone further than the original conviction by lifting the suspended provision on the 30 million euro fine, thereby sending a very clear message. Nonetheless, because of insufficient evidence, the Appeal Court dismissed the charge of laundering proceeds of corruption.

More importantly, the Appeal Court confirmed the confiscation of all his assets seized, amounting to approximately 150 million euros. By way of comparison, in Equatorial Guinea, the amount of 150 million euros represents the budget allocated to health by the government in 2011 (this being the most recent year for which figures exist).

France is not the only country which has confiscated assets belonging to Teodorin N. Obiang. If Switzerland (see document in French) and the United States have halted the proceedings against him, they have nevertheless committed to ensuring that, with the help of charitable organisations, the proceeds from the sale of his confiscated assets are used for the good of Equatorial Guinea’s population. Nearly six years have passed since a settlement was reached with Teodorin N. Obiang. Yet, according to the information available, it seems that the American authorities have not even begun to return the confiscated funds.

Unlike Switzerland and the United States, there is currently no provision in French law for returning funds acquired from confiscated assets to the population in their countries of origin, except for cases of mutual legal assistance. By default, these funds revert to the French general state budget.

In pronouncing judgement on Teodorin N. Obiang in 2017, the Correctional Court of Paris stated that ‘it would be morally reprehensible for the state imposing the confiscation to profit from it without considering the consequences of the offense in question.’ The court then called for an improvement in the French system by ‘adopting a legislative framework for returning assets acquired illegally.’

Two years later, it appears that this call has been heard. In May 2019, on a first reading, the French senate adopted a legislative proposal aiming to return assets arising from international corruption to populations in their countries of origin. This proposal was positively received by the French government, which then instructed two members of parliament to study the legal and budgetary avenues available for returning these sums of money.

In a report published in November 2019 (document in French), the two members of parliament suggested the creation of an ‘innovative’ mechanism for returning ill-gotten assets. The two members of parliament, basing their suggestions on the principles adopted during the Global Forum on Asset Recovery (GFAR) in 2017, advised to transfer the confiscated assets to the French general state budget, and then to a dedicated budget line of the Agence Française de Dévéloppement (AFD), the French development agency.

This proposal diverges from the initial recommendations of Transparency International France (site in French), who advocates a separation of confiscated assets in the general state budget by allocating them to a special account before they are put to use. Nevertheless, the creation of a dedicated budget line does at least ensure the traceability of the funds that are transferred to the AFD.

If the restitution of assets to populations in their countries of origin is to pursue common goals through development aid, such as the improvement of living conditions for these populations, the restitution should, however, follow a dedicated, tailor-made procedure. The sums of money returned are in all truth neither donations nor loans. On the contrary, the fact that France was the receiving country for these ‘ill-gotten assets’ means that it is morally highly indebted to the affected populations.

If France wishes to return the confiscated funds via its development agency, then it is necessary to put a specific governance mechanism in place, which will distinguish between, on the one hand, funds derived from ‘ill-gotten assets’ and, on the other, ‘classic’ public development aid resources. This is already the case in Switzerland, where, within the framework of the Federal Department of Foreign Affairs (FDFA) a task force was formed in order to return illegal assets. Similarly, in the United Kingdom in 2006, an International Corruption Group was created under the umbrella of the Department for International Development (DFID).

It is imperative that the decision to entrust the AFD with the management of returning confiscated assets be accompanied by guaranties of transparency and accountability in accordance with best international practices and GFAR principles. To that end, civil societies in France and in the country of origin must be involved in each stage of the procedure.

Time is not standing still. French criminal law is, in fact, not retroactive. Teodorin N. Obiang has lodged an appeal with the Court of Cassation. It is vital that a law creating a mechanism for restitution be adopted before the Court of Cassation makes its decision (the date is not yet known). If not, the confiscated 150 million euros will revert to the French general state budget.

France cannot convict without ensuring that assets can be returned. Without restitution, the population of Equatorial Guinea would be punished twice over. Additionally, French anti-corruption activists and associations would be weakened after 12 years of striving against the acquisition of ‘ill-gotten assets’ and of working for responsible restitution of these assets to the populations in their countries of origin.