By Rui Verde
Africa-Press – Angola. In his recent speech to the United Nations General Assembly, the President of the Republic of Angola, João Lourenço, was incisive about the recovery of Angolan assets abroad.
“With regard to asset recovery, we have had two successful cases, in which we were able to count on the very responsible attitude and respect for our sovereignty on the part of the UK authorities (…) Unfortunately, not all countries that agreed to receive these assets from corruption, without questioning their origins at the time, now respect the sentences handed down by our courts, which are binding. Some of these countries even claim the right to question the credibility of our courts, almost wanting to review the sentences issued by them, as if they were extra-territorial appeal bodies.[1]”
It is obvious that this question arises, and arises in the case of Isabel dos Santos’ assets in Portugal, not because of the existence of decisions by Portuguese courts that call into question the Angolan courts – which has not happened to date – but because of the functioning or non-functioning of various criminal procedural rules. It is worth analysing in as much detail as possible what has been happening with Isabel dos Santos’ main assets in Portugal, in order to try to reach some conclusions.
THE SALE OF EUROBIC
Recently, a fact caught the attention of public opinion: the sale of Isabel dos Santos’ stake in the Portuguese bank EuroBic to ABANCA, a Spanish bank.
In the sale of Isabel dos Santos’ stake to the Spanish bank, several entities were identified as having Isabel dos Santos as the ultimate beneficiary, namely Santoro Financial Holding, SGPS, SA with 25% of the bank’s share capital and Finisantoro Holding Limited with 17.5% of the bank’s share capital, totalling 42.5%[2]. These stakes were subject to a preventive seizure ordered in several Portuguese criminal proceedings, namely no. 210/20.4TELSB, no. 26310/21.5T8LSB and no. 10314/22.3T8LSB.
Apparently, according to the publicly available information, the amount received by Isabel dos Santos for the sale to ABANCA, around 127.5 million euros, was seized under the previous terms of participation,[3] although the exact terms are not entirely clear.
In relation to this asset and its possible recovery, two questions arise. The first is the nature of the preventive seizure carried out pursuant to criminal proceedings.
Preventive seizure is a criminal procedure measure, provided for in article 228 of the Portuguese Code of Criminal Procedure, which seeks to guarantee payments that the defendant may incur in the future, whether relating to any pecuniary penalty, court costs or any other debt owed to the State related to the crime, or relating to the loss of instruments, products and benefits of a typical unlawful act or the payment of the corresponding amount.
Therefore, it is a provisional measure that can be revoked by a judge or declared extinct. Without going into too many legal considerations, the truth is that this seizure does not guarantee that, in the end, the Angolan State will receive any of these amounts, either because the criminal proceedings in Portugal are not concluded, have expired or even because Isabel dos Santos is acquitted.
As the situation currently stands, the amount will only be definitively removed from Isabel dos Santos’s sphere in the event of a final conviction in the aforementioned cases, which will probably take ten years or more.
Other situations such as prescription, acquittal or archiving, imply the delivery of the amounts to Isabel dos Santos.
Furthermore, even in the event of a conviction, the truth is that these proceedings take place in Portugal, and the costs associated with them will first be reimbursed by the Portuguese State.
In fact, there is a legal weakness in the measures taken by the authorities of both countries in relation to Isabel dos Santos, which could result in there being no benefits from all this judicial action, at least for Angola.
Another aspect, still linked to this sale, is that it was not limited to Isabel dos Santos, but rather to 100% of the bank’s capital.[4] This means that the other shareholders also sold their positions and received their amounts. Their list is public, as is the fact that they are not the target of any criminal proceedings in the context of Luanda Leaks or any relatives.[5] No suspicion falls on these other shareholders.
The relevant point is that they are former associates of Isabel dos Santos, who with her founded BIC in 2005 in Angola and who later moved with her to the then Banco Português de Negócios (BPN) which they bought and renamed EuroBic. For example, by the way, Luanda Leaks wrote: “The bank’s [Eurobic] then-chairman, Fernando Teles, was a dos Santos business partner.[6]”
The question that remains open, given the information published, is the financial relationship between these shareholders and Isabel dos Santos, given that they are considered “Business partners” and, above all, whether the judicial authorities have looked into the matter. Since there is no public response, it is assumed that there is no relationship, but it would have been good if this aspect had been clarified.
The essential conclusion reached is that the recovery of Isabel dos Santos’ assets in relation to Eurobic may happen in the long term, but it is very fragile.
EFACEC
Another well-known asset was that of EFACEC. The story is well-known and is currently contested by Portuguese State oversight bodies.[7] We do not agree with the position of the Portuguese Court of Auditors on this matter. In fact, at the time, nationalizing the company was the best way to safeguard the company’s survival and jobs. We must not forget the media impact of the Luanda Leaks and the entire investigation into Isabel dos Santos, which acted as a vortex that made everything disappear. The questions raised by the Court of Auditors may have had an impact downstream of the decision, in terms of public management issues and subsequent neglect, but at the time, it was the best possible decision.
The fact is that EFACEC was nationalized by Decree-Law No. 33-A/2020, of July 2. According to this regulation, there will only be a right to compensation in accordance with the value of the respective rights, assessed in light of the patrimonial and financial situation of the legal entity on the date the nationalization act came into force, and in the calculation of the compensation to be awarded to the holders of the nationalized shareholdings, the value of the respective rights is determined, taking into account the actual net assets (art. 4 and 5 of Law No. 62-A/2008, of November 11). Now, considering what the Court of Auditors says in its report now presented, according to which “public financing of 484 million euros was necessary, with the risk of rising to 564 million euros[8]”, it is easy to conclude that the value at the time of nationalization was negative, with nothing to compensate the company’s owners (Isabel dos Santos) or anyone who owes it due to any criminal proceedings (the Angolan State).
EFACEC’s situation is straightforward. Nothing will be returned to the Angolan state, because the company was in a negative net situation when it was nationalized.
US
Finally, with relevance in the Portuguese legal system, we have Isabel dos Santos’ participation in NOS. The company’s official information states that in March 2024, Isabel dos Santos’ position corresponded to 26.7% through ZOPT, SGPS, SA and therefore to the companies Kento Holding Limited and Unitel International Holdings, BV, as well as Isabel dos Santos, being (i) Kento Holding Limited and Unitel International Holdings, BV, companies directly and indirectly controlled by Isabel dos Santos, and (ii) ZOPT, a company controlled by its shareholders Kento Holding Limited and Unitel International Holdings, BV[9].
The situation of Isabel dos Santos’ position in this company deserves some attention, because it has undergone a notable evolution, which has probably gone unnoticed by many.
In a first phase, on “4 April 2020, SONAECOM, SGPS, SA (“Sonaecom”), which holds 50% of the capital of ZOPT, SGPS, SA (hereinafter “ZOPT”), was informed by its subsidiary of the communication received from the Central Criminal Investigation Court of Lisbon (hereinafter the Court) to proceed with the preventive seizure of 26.075% of the share capital of NOS, SGPS, SA, corresponding to half of the shareholding in NOS held by ZOPT and, indirectly, by the companies Unitel International Holdings, BV and Kento Holding Limited”, controlled by Eng. Isabel dos Santos.[10]”
Then, “in September 2022, Sonaecom informed that at a meeting of the General Assembly of ZOPT it was decided to proceed with the amortization of Sonaecom’s stake in that company and the refund of the additional payments made by Sonaecom, for a consideration that includes the delivery of shares representing 26.075% of the capital of NOS. As a result of the aforementioned amortization, which was dependent on the applicable legal procedures, Sonaecom ceases to be a shareholder of ZOPT, which is now wholly owned by Unitel International Holdings, BV and Kento Holding Limited, companies controlled by Eng.a Isabel do Santos.
In December 2022, Sonaecom, after complying with legal procedures, reported that it now directly holds 134,322,268 ordinary shares of NOS, corresponding to 26.07% of the share capital.”
The result of this evolution is that Isabel dos Santos’ shareholding is no longer part of a block that controlled the capital and management of NOS and SONAE now holds sole effective control of the company (37.37%), since 31.56% of the capital is distributed among others who do not individually reach 5%. There has been a qualitative evolution in Isabel dos Santos’ position, possibly for the worse.
Therefore, Isabel dos Santos’ position ceased to be strategic and controlling, becoming a (possibly) “dormant” financial position, while SONAE’s position was strengthened.
There is no doubt that the Portuguese group SONAE acted intelligently in a complicated situation, while Isabel’s position deteriorated in terms of real value.
It should be noted that, in the same report cited above (1H2024), the Board of Directors notes that it “is not aware of any developments in the aforementioned preventive seizure process.” Therefore, it appears that the seizure remains in place, but under the same terms as the Eurobic seizure, meaning that the same considerations apply.
CONCLUSION
The conclusion we can reach is that for the Angolan State, the probability of obtaining the recovery of Isabel dos Santos’ assets in Portugal is far away in terms of timeframe, and depends on several legal vicissitudes that may or may not occur, and there is therefore justified fear that the words of the President of the Republic João Lourenço at the UN will come true.
In fact, only the activation of the so-called “confiscation without judicial conviction” provided for in articles 109 and 110 of the Portuguese Penal Code could reverse the situation and lead to the immediate confiscation of these assets.
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