« BIENS MAL ACQUIS » CASE: FRENCH SUPREME COURT OVERRULES COURT OF APPEAL’S DECISION
The complaint filed by Transparence International France is ruled admissible
Transparency International France and SHERPA welcome today’s ruling by the criminal chamber of the Supreme Court (Cour de Cassation) in a corruption case calling for an investigation into how luxury assets (properties and cars, as well as bank accounts) were acquired in France by three foreign heads of state - Denis SASSOU NGUESSO (Congo-Brazzaville), Omar BONGO ONDIMBA (Gabon, now deceased), Téodoro OBIANG MBASOGO (Equatorial Guinea) - and their relatives.
The Supreme Court has overruled the decision handed down one year ago by the Paris Court of Appeal by ruling the complaint filed by TI France on December 2nd 2008 is admissible.
The Supreme Court’s decision will allow the appointment of an investigating judge and the opening of a judicial inquiry. This judge will have to determine the conditions under which the assets in question were acquired, as well as how the numerous bank accounts identified by the police were accumulated. The inquiry should also shed light on the role played by various intermediaries who might have facilitated operations identified as suspect by the French police. First among those are the banking institutions which were identified by the investigations, and whose respect for their anti-laundering obligations one can only question.
Without prejudice to the result of the judicial investigation, SHERPA and Transparency International France expect the inquiry to allow the truth to come out, and in time, to lead to an effective exercise of the right to restitution - a right explicitly guaranteed by the UN Convention against Corruption which France ratified in 2005.
In all cases, this decision stands as a considerable legal milestone that goes beyond the “Biens Mal Acquis” Case. For the first time in France, the collective action of an anti-corruption association is deemed admissible before a criminal court.
This decision, which is in line with the evolution of positive laws regarding collective action of associations, should permit to overcome the inertia of public prosecution in sensitive cases of political or financial nature in the future.
BIEN MAL ACQUIS CASE: SUMMARY
2007: CCFD-Terre Solidaire issued a report “Stolen Assets - Dictators’ Wealth and Western Connivance” which estimated the amount of stolen assets located in Western countries.
March 2007: Complaint #1 à Sherpa, along with two other French NGOs (Survie and the Federation des Congolais de la Diaspora), filed a legal complaint before the French Public Prosecutor against the ruling families of Angola, Burkina Faso, Congo, Equatorial Guinea, and Gabon alleging that some of them owned millions of Euros worth of properties in France that could not be the fruits of their official salaries.
Late 2007: Preliminary Investigation à The probe confirmed most of the allegations and further uncovered various additional assets, properties and goods (luxury cars, bank accounts). The investigation revealed:
Regarding Mr. Omar BONGO and his relatives:
- Real-estate assets including thirty-nine (39) properties, seventeen (17) of which are registered in the name of Mr. Omar Bongo. Most of those properties are located in Paris’ upscale 16th district;
- Seventy (70) identified bank accounts, eleven (11) of which registered in the name of Mr. Omar BONGO.
- An automobile fleet comprising of at least nine (9) vehicles for a total estimated value of €1.493.443.
Regarding Mr. Denis SASSOU NGUESSO and his relatives:
- Real-estate assets including eighteen (18) properties;
- One hundred and twelve (112) bank accounts;
- An automobile fleet comprising of at least one (1) vehicle estimated 172.321€.
Regarding Mr. Teodoro OBIANG and his relatives:
- Real-estate assets including at least one (1) property registered in the name of Mr. Teodoro Obiang;
- One (1) identified Barclays bank account registered in the name of Mr. Teodoro Nguema Obiang;
- An automobile fleet of at least eight (8) vehicles owned by Teodoro Nguema Obiang, total estimated value at 4.213.618€.
Furthermore, the investigation revealed the atypical nature of some of those funding practices: the late Edith Bongo, then wife of the late Gabonese President, is said to have bought a Daimler Chrysler car with a check account opened in the Banque de France by the Gabonese Public Treasury.
Despite these overwhelming findings, the case was dismissed on November 7th 2007, the Public Prosecutor having considered the infraction to be “insufficiently characterised”.
July 9th 2008: Complaint #2 On July 9th 2008, TI France, together with Congolese and Gabonese citizens lodged another complaint before the French Public Prosecutor. This complaint was strictly identical to the one filed by Sherpa sixteen months before. The sole objective was to enable TI France as well as Gabonese and Congolese citizens to later lodge a complaint with civil party petition before the investigating judge (Article 85 of French Criminal code of procedure). Therefore, it is unsurprising that the Public Prosecutor decided on September 3rd 2008 not to pursue the case.
On December 2nd 2008, TI France and Gregory Ngbwa Mintsa, a Gabonese citizen, filled a complaint with civil party petition in the hope of triggering a judiciary inquiry. The same day, Omar Bongo’s lawyers announced their intention to sue Sherpa and TI for libel.
April 20th 2009: The Public Prosecutor Office in Paris officially opposed the opening of a judiciary inquiry.
May 5th 2009: Decision of Ms. Desset, Dean of the Investigating Judges at the Financial Section of the Paris Court à The Judge dismissed the Gabonese citizen’s civil party petition, considering he had no standing in this case. However, she also admitted Transparence-International (France) as a civil party, hereby setting in motion the opening of a judiciary inquiry. The Public Prosecution, however, quickly appealed the decision.
October 29th 2009: Decision of the Paris Court of Appeal à Inadmissibility of Transparence-International (France) as a civil party. At this point, TI (France) appealed to the Supreme Court (Cour de Cassation).
 See the case summary, annexed to this press release.
 In the past few years, the Cour de Cassation has admitted, on the basis of article 2 of the criminal procedure code, the admissibility of civil party petitions from associations whenever the targeted infraction causes direct damage to the collective interests defended by said associations. Previous examples include the associations opposing tobacco use (Cass. crim. 7 février 1984: Bull. crim. n° 41; Cass. crim. 29 avril 1986: Bull. crim n° 146), honoring the memory of World War II deportees (Cass. Crim 14 janvier 1971: Bull. crim n°14), or more recently, associations for the protection of the environment (Cass. crim. 12 septembre 2006 : Bull. crim. n° 217).
 This report was recently updated and expanded: « Biens Mal Acquis : A Qui Profite le Crime ?”, June 2009. http://www.ccfd.asso.fr/BMA/
For any press enquiries please contact
Maître Bourdon, Association SHERPA
T: +33 06 08 45 55 46
Maud Perdriel-Vaissière, SHERPA
T: +33 06 83 87 97 34
Myriam Savy, Transparence-International France
T: +33 01 47 58 82 08
Daniel Lebègue, Transparency International France
T: +33 06 07 42 01 83
Julien Coll, Transparency International France
T: +33 06 72 07 28 65