Recovering Ben Ali’s Stolen Funds: The Squandered Right
Following the Tunisian revolution, a media and political discourse prevailed estimating the funds stolen by Ben Ali’s family and in-laws at USD$32 billion[1] and heralding their imminent recovery and use to achieve economic growth for the country in general and the “marginalized”[2] interior areas in particular. To achieve this promise, the political authority created, via Decree no. 15 of 2011,[3] the National Committee for Recovering Illegitimately Acquired Funds Abroad,[4] which it vested with “coordinating, and conducting where necessary, recover procedures”.[5]
Due to the quick need for cooperation between the committee and multiple administrative parties, including the Ministry of Justice and Ministry of Foreign Affairs, political authorities intervened again in 2012[6] to create the Higher Council for the Fight Against Corruption and Recovery and Management of State Funds and Property.[7] This council was intended to spur the cooperation of the administrative bureaucracy with the committee and prevents it from causing obstructions.[8]
1- Initial Steps Towards Securing the Right: Spring Flowers Considered Fruit
Before the revolution’s first month ended, both Switzerland and the European Union,[9] at the request of the senior investigating judge in Tunisia’s Court of First Instance (and after they made the suggestion as a show of support for the Tunisian Revolution), issued administrative freezes on funds belonging to the 48 Tunisian citizens named by the Seizure Decree. Subsequently, on 23 March 2011, Canada took the initiative of issuing a law regulating the freezing and management of corrupt foreign officials’ funds.[10] The first text to apply that law’s procedures pertained to Tunisia and froze the funds of the same people. At later dates, other countries responded to the request to freeze Tunisian state funds held by people listed in the Seizure Decree and found to hold funds in those countries by investigations the Central Bank’s Financial Fraud Committee conducted in coordination with its counterparts in them.[11] On their part, the investigating judges examining financial corruption cases from the beginning of 2011 to the end of 2014 issued 64 international letters of request.[12] These letters asked, pursuant to Article 43 of the UN Convention against Corruption, for the research and investigations needed to uncover funds, properties, and movables belonging to the people encompassed by the prosecution to be carried out and for these assets to be frozen pending the completion of legal proceedings to return them to the Tunisian state.
In this effort, Tunisia benefited from the Stolen Asset Recovery Initiative (StAR) of the World Bank and United Nations, which provided the resources needed to train everyone involved in the issue and develop their experience in the area.[13] It also obtained financial support from the African Development Bank in order to appoint the legal staff who pursued the issue abroad.[14]
The first years of the process ended in what was thought to be a wave of recovery that the Lebanese Central Bank had the honor of inaugurating in 2013 by returning TND28.8 million to its Tunisian counterpart. However, it quickly became apparent that the promises and dreams could be a mirage.
2- The Elusive Dream: The Right in Theory Is Not Enough
Ultimately, the recovery effort only produced limited returns perhaps of less value than the money spent pursuing them.[15] The Tunisian government has acknowledged this failure on multiple occasions.[16] In some ways, this failure was a result of the policies of the haven states. In other ways, it was a result of the Tunisian state’s performance in administering the issue.
Foreign Factors
While Switzerland provided Tunisia with a detailed statement of the funds frozen for it, which were estimated at approximately EUR€60 million, no other countries did so. Hence, the exact volume of the frozen funds was unknown.[17] Furthermore, the western haven states required that Tunisia prove that the frozen funds it asked to be returned came from corrupt sources. This burden of proof was very heavy, especially because although Tunisia managed to form a list of those accused of stealing its funds, it is difficult, because of the branching nature of corruption crimes, for it to determine the kickbacks that each one obtained through profiteering in public transactions or granting concessions to international companies. The decision not to charge the local judiciary in the haven states, in light of the Tunisian state’s negligence to do so, with investigating suspicions of corruption appears to conflict with the values of those states and the international agreements they have ratified, particularly the UN Convention against Corruption and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
The lack of cooperation that emerged on the part of those states could be explained via the role imputed to their major companies in the corruption to be exposed. In other words, the western countries were a prisoner to their hidden interest in covering up all facts that could support the demands of the Global South countries’ elites to hold them responsible for the corruption that prevailed in those countries.[18] On the other side of the landscape, the refusal of the Arab states, particularly the Gulf states, to cooperate seriously with Tunisia on this issue seems to be connected to their political interests and lack of a culture of combating corruption.
The Short-Lived Committee for Recovering Stolen Funds
The Tunisian state’s decisions and the performance of its institutions played a pivotal role in the faltering of the recovery process. In this regard, the legislative stipulation of a relatively short term (four years)[19] for the committee on recovering stolen funds, which does not concord with its task, undermined the recovery effort. Consequently, in 2015 the committee’s dissolution was announced when the higher council for fighting corruption had not yet been activated.[20] Hence, all the committee’s cases were transferred to the institution of the head of state litigation, to whom competence over them reverts.
In setting the committee’s term, the Tunisian state did not draw upon comparable experiences, which have shown that recovering stolen funds requires at least a decade of continuous effort. Similarly, it intentionally transferred a sensitive issue from a specialized committee composed of relevant specialists to an administrative body whose structure allows no possibility of creating a cell of members from multiple disciplines. Hence, the institutional structure of the recovery effort was its first flaw.
Judicial Proof of Corruption: An Inability to Convince and a Failure to Respect the Right of Confrontation
Tunisia’s collection of its funds frozen in the western states is contingent on the issuance in those countries of judicial decisions allowing it. The judiciaries in the haven states ask Tunisia to present final judgments establishing that the frozen funds come from corrupt sources. In attempting to comply with this requirement, Tunisia struck the problem that most of its judiciary’s rulings against defendants with frozen bank accounts were issued in absentia and therefore are not final. Similarly, the courts that issued them did not ensure the defendants’ right to confrontation. The Tunisian criminal judiciary routinely refused to enable the proxies of absent defendants to photocopy the case files or present reports. The western courts saw this practice as impinging on the right to confrontation and enough in and of itself to refuse to adopt the judgments presented.
Tunisia’s Turn Towards Reconciliation with People with Frozen Funds: A Compromise Perceived Negatively
Tunisia was content merely to pursue recovery procedures against people whose money was frozen in 2011 and ask periodically for the freeze to be extended whenever it elapsed. It made no effort to expand the scope of the people whose funds were frozen. On the contrary, in 2018 it took measures to lift the freeze from one such person. On 22 November 2018, the Tunisian cabinet approved the dispatch of a request to the European Union to lift the freeze on Marouane Mabrouk’s funds. This decision was taken even though no rulings that could justify it had been issued locally and after the person from whom Mabrouk benefited failed to achieve it in the courts of European states.
In this regard, Tunisia’s reluctance to pursue its stolen funds not frozen and its effort to constrict the scope of the freezes could be seen outside the country as an indicator that it is no longer enthusiastic about this issue, which would weaken international cooperation with it in this regard. The European Union complied with Tunisia’s request to lift the freeze via a decision dated 28 January 2019.[21] In turn, Switzerland lifted the freeze on the funds of Mabrouk and his brothers Muhammad Ali and Ismail. While the Tunisian state appealed that decision, the Federal Criminal Court of Switzerland rejected the appeal on 29 October 2019, on the grounds that the evidence Tunisia presented against Mabrouk was insufficient and the rights of defense were not observed in the investigations against his brothers.
In its developments and stumbles, the issue of recovering smuggled funds largely reproduces the dynamics of the Tunisian experience with transitional justice. The dream was great, but it quickly declined because of decision makers’ mistakes and the evolution of the surrounding political mood, albeit as also occurred in the experiences of other people.
This article is an edited translation from Arabic.
Keywords: Tunisia, Stolen funds, Frozen funds, Corruption
[1] These estimates, first announced in a report prepared by an association established in 2011 under the name the “ Tunisian Financial Transparency Organization”, seem arbitrary, although they converge with estimates from credible international organizations concerning the funds stolen in the Arab Spring countries in general.
[2] This term is conventionally applied to the less developed areas.
[4] The committee is composed, per Article 4 of the decree establishing it, of the governor of the Tunisian Central Bank, who presides over it and manages its sessions, the minister of finance or whomever he or she delegates, a representative of the minister of justice, a representative of the minister of foreign affairs, and the head of state litigation.
[5] Article 2 of the decree.
[6] Order no. 1425 of 2012, dated 31 August 2012, on amending and supplementing Order no. 3080 of 2010, dated 1 December 2010, on creating higher consultative councils.
[7] Article 25 ter of the creation order stipulated that
The Higher Council for the Fight Against Corruption and Recovery and Management of State Funds and Properties shall be composed of the prime minister’s minister charged with government and fighting corruption, the minister of justice, the minister of interior, the minister of foreign affairs, the minister charged with human rights and transitional justice, the minister charged with state property and real estate affairs, the minister of finance, the president of the National Anti-Corruption Authority, the president of the National Committee for Recovering Illegitimately Acquired Funds Abroad, the president of the National Committee for Seizing Funds and Movable and Immovable Property, the president of the National Committee for Managing Funds and Property Subject to Seizure or Recovery for the State, and five deputies from the Council Charged with Legislative Authority appointed via a proposal from it.
[8] Article 25 bis of the order defined the council’s task as “following-up and coordinating the work of the various national committees and structures charged with seizing, recovering, and managing the funds and movable and immovable properties acquired via illegitimate means and belonging to the state, both those found inside the country and abroad”.
[9] DÉCISION 2011/72/PESC DU LE CONSEIL DE L’UNION EUROPÉENNE du 31 janvier 2011 concernant des mesures restrictives à l'encontre de certaines personnes et entités au regard de la situation en Tunisie.
[10] Loi sur le blocage des biens de dirigeants étrangers corrompus et le Règlement sur le blocage des biens de dirigeants étrangers corrompus.
[11] Principally, they are France, Italy, Belgium, Germany, the United States, Australia, Canada, Egypt, Morocco, Algeria, Lebanon, and Congo.
[12] They are distributed as follows: 30 initial letters of request – namely 14 to countries from the European sphere, 4 to the United States, 10 to Arab states, and 2 for African states – and 34 supplementary letters of request pertaining to cases in which funds had been frozen by previous administrative decisions or to following-up the implementation of initial ones.
[13] The Stolen Assets Recovery Initiative (StAR) is a team specialized in the recovery of illegitimate funds that operates with funding from the World Bank and the United Nations and provides technical support to countries wishing to recover their smuggled funds.
[14] The African Development Bank paid the fees of the international law firms charged with supporting Tunisia’s effort to freeze its smuggled funds in preparation for their recovery.
[15] TND28.8 million were recovered from the Lebanese Central Bank in 2013 after a Tunisian ruling was granted enforceability. In 2013, a private plane was recovered from Switzerland owned by one of Ben Ali’s in-laws. Similarly, a yacht belonging to Ben Ali’s in-law Belhassen Trabelsi was recovered from Spain based on a decision issued by a Spanish investigating judge and upheld on appeal entrusting the seized yacht to Tunisia until its corrupt origins are proven (legally a temporary recovery). A yacht belonging to one of Ben Ali’s in-laws was also recovered from Italy based on a judicial decision in 2015. EUR€250,000 were recovered from Switzerland under a judicial ruling in 2017, and Switzerland returned EUR€3.5 million after the accused attested to smuggling the money to it (written consent from Slim Chiboub after judicial investigations revealed that the sum was paid to him as a kickback in a public transaction).
[16] See, for example, former minister of state property Hatem al-Ashi’s speech at the opening of an international seminar on “the system for recovering funds acquired illegitimately” on 30 May 2016.
[17] See the previous source, which states, “In this regard, despite the efforts that occurred, no Tunisian administrative body, including the committee, has had access to an official list of the sums or properties frozen by the countries that these decisions concern, except for Switzerland, which in 2011 announced the freeze of approximately CHF60 million”.
[18] The radical Tunisian left maintains that this issue must be opened, and Hamma Hammami, the Popular Front coalition’s candidate for the 2019 presidential elections, included debt auditing within his electoral platform.
[19] Article 13 stipulates that, “The committee has been created for a set term of four years beginning from the date of this decree’s publication. When this term elapses, the head of state litigation shall, in accordance with the law, continue the committee’s undertakings and the cases underway”.
[20] “Lajnat al-Islah al-Idariyy Tada'u ila Taf'il al-Majlis al-'Ala li-l-Tasaddi li-l-Fasad wa-stirdad al-Amwal wa-Mumtalakat al-Dawla”, Assabah, 23 January 2017.
[21] DÉCISION (PESC) 2019/135 DU CONSEIL du 28 janvier 2019 modifiant la décision 2011/72/PESC.
