While some of the property confiscated from former Algerian oligarchs has just been sold at auction, Algiers is still struggling to recover those hidden abroad. Lawyer and former member of the International Court of Arbitration, Nasr Eddine Lezzar offers alternative methods to resolve the impasse.
It is a jackpot that the authorities estimate at several billion dollars that Algeria is trying to recover, through judicial cooperation with around thirty countries. But money is struggling to return to the country because of the legislative obstacles that particularly govern the banking sector. For business lawyers and former members of the International Court of Arbitration Nasr Eddine Lezzar, Algiers would undoubtedly be better advised to consider a mechanism for amicable recovery of sums embezzled during the era of the former President Bouteflika.
The system could, for example, propose a cessation of prosecution. We could also imagine maintaining assets in foreign countries while managing them remotely and receiving dividends. But is this path realistic? The lawyer details here the difficulties facing the Algerian state and the alternative system he is thinking of.
Jeune Afrique: Algerian justice has sent through diplomatic channels no less than 220 letters rogatory and requests for mutual legal assistance to around thirty countries, without convincing results. What is blocking these numerous attempts to recover property misappropriated under the old regime?
Nasr Eddine Lezzar: Multilateral conventions signed under the aegis of regional or universal organizations exist, and it would take a long time to list them here. However, the implementation of these mechanisms depends on the political will of two States, the requesting State and the requested State. This is even though this implementation would be done by the judicial authorities. In this area, speeches on the independence of justice in sending and receiving countries should not create illusions. People convicted and under international arrest warrants, issued by the Algerian justice system, are still at large without this procedure being conclusive. The repatriation of ill-gotten wealth is more difficult than the extradition of the person responsible for the crime.
Isn’t the traceability of ill-gotten gains an additional difficulty?
Indeed, the difficulties and problems lie, among other things, in the technique of nominees. The people being prosecuted had time to take the lead and robbed themselves by transferring their assets to nominees or wealth managers. Even defendants surprised by their arrest were able to carry out transfers through people who manage their property on-site and who are endowed with the broadest powers. Also, large sums were routed to tax havens via opaque channels and structures
Banks are reluctant when it comes to returning assets that bring them substantial dividends.
If the location of bank assets is problematic, recovery is more so. France is, like Switzerland, one of the countries most reluctant to lift banking secrecy. Banks are reluctant when it comes to returning assets that bring them substantial dividends. The receiving banks will use all artifices and all delaying techniques to delay this restitution as much as possible. We will always find a comma missing in a given document to reject the request in its form.
What about real estate or companies?
Businesses and commercial property can be inventoried but sometimes with great difficulty depending on the reliability, traceability, and publicity of the accounting entries. The situation becomes more difficult for shares and shares held in public limited companies. There, obtaining the information is very complex and can only be done after a long procedure, if it is successful at all.
As for real estate, it is easily identifiable but not transferable. They are the subject of publicity, that is to say, information on each person’s real estate assets is available to the public. Therefore accessible without complex formalities. But the transfer is impossible, we must consider their sale by the Algerian State or management on its behalf by specialized structures.
The recovery of property also depends on the internal legislation of each country, does this complicate things?
Effectively. Let us take the case of France which, to all appearances, is the country that hosts the majority of ill-gotten funds and goods in Algeria. It has an operational system for the restitution of “ill-gotten gains”, administered by the Ministry of Europe and Foreign Affairs (MEAE), via Law No. 2021-1031 of August 4, 2021, relating to programming to inclusive development and the fight against global inequalities.
The restitution of ill-gotten assets according to French law is part of an action of solidarity and the fight against global inequalities.
This “innovative” mechanism according to its promoters provides for “the restitution of sums resulting from the sale of “ill-gotten goods” definitively confiscated in France in the form of cooperation and development actions in the countries concerned as close as possible to the populations”. This system has become operational since its terms were set out in circular No. 6379/SG of November 22, 2022, signed by the Prime Minister at the time. The restitution of ill-gotten assets according to French law is part of an action of solidarity and the fight against global inequalities. I understand that the year 2022 coincided with the period when convictions in corruption cases became final. Judicial authorities have initiated procedures to recover confiscated and expatriated property and funds all over the world.
The French text goes on to specify that the funds made up of the sales of ill-gotten goods are allocated to “Public Development Assistance”, placed under the responsibility of the Ministry of Foreign Affairs, and “finance cooperation and development actions in the countries concerned while respecting the principles of transparency and admissibility, and ensuring the association of civil society organizations.”
These funds are therefore not returned to the requesting State. The French State, the receiver, becomes the guarantor of the proper allocation of stolen funds for the benefit of the population. We are faced with an attack on the sovereignty of the requesting State and the right to free disposal of its property.
What do you recommend to recover this expatriate heritage?
The recovery of ill-gotten assets is a complex process that requires specific prerequisites and conditions. Namely, knowledge of the law of the requesting State (which requests restitution of assets) and that of the requested State, as well as a mastery of the mechanisms of international law. Recovery should also be distinguished from repatriation: it is significantly easier to recover these assets in the name of the Algerian state and maintain them in the host country than to try to repatriate them.
The host State would collaborate more willingly if it had the assurance of maintaining the funds on its territory and in its banks, even if the Algerian State would collect the dividends periodically. It would be wise to consider the creation of a bank, a public office, and an investment fund, which would be responsible on behalf of the Algerian State for recovering these funds and these assets, and would make them grow in the countries that host these ill-gotten gains. The dividends would enrich the Algerian public treasury.
There is, finally, another solution that deserves to be debated: some of the businessmen detained in the context of what is called the “îssaba” trials (a term which designates the “clan” or the “mafia” which gravitated around former president Abdelaziz Bouteflika, Editor’s note) showed their willingness to return the property in exchange for a cessation of prosecution. One of them reportedly said: “Let me go out with my pants on, and I’ll give back everything I have.” » I think that there is an avenue for negotiation there, a possibility of a penal settlement which would result in restitution of the undue payment in exchange for a reduced sentence.
