Director of Public Prosecutions v Kerimov [2022] FJHC 193; HBM57.2022 (3 May 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBM 57 of 2022

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS of the Republic of Fiji, 25 Gladstone Road, Suva.

APPLICANT

AND: SULEIMAN ABUSAIDOVICH KERIMOV being the beneficial owner of the Motor Yacht Amadea with International Maritime Organisation Number 1012531 having his address of service at Haniff Tuitoga, 12 Vesi Street, Flagstaff.

RESPONDENT

Counsel : Applicant: Ms Prasad. J
: Respondent: Mr Haniff. F
Date of Hearing : 25.04.2022
Date of Judgment : 03.05.2022

JUDGMENT

INTRODUCTION

1. The Applicant is seeking this Court to register foreign warrant to seize property upon request to Competent Authority in Fiji. The request was made in accordance with the Mutual Assistance in Criminal Matters Act 1997 .The property subject to the foreign order is Super yacht Amadea international maritime organization number1012531 (Amadea).
   
2. Amadea is currently restrained from leaving Fiji pending determination of the registration of the foreign restraining order by way of interim order obtained ex parte for obvious reasons.
   
3. There is no application to vary or set aside this interim order and Defendant who is the registered owner is not challenging interim order restraining Amadea from leaving shores of Fiji until this application for registration of warrant is determined.
4. The second Respondent was joined as a party after counsel made a request to do so on the basis that Respondent should be the registered owner of Amadea and accordingly originating summons was amended and proceeded against second Respondent.
   
5. The warrant was against Amadea and this is a warrant issued in rem as against In personam. This originating summons sought orders in rem against Amadea. Accordingly, registered owner is referred to as Respondent in this judgment for convenience and there was no requirement to proceed against first Respondent.
   
6. Applicant is seeking to register the warrant issued by US District Court for the District to Columbia instituted in rem. This is an action filed against Amadea, and the warrant was issued against Amadea as a ‘preliminary step’ in US proceedings.

LAW AND ANALYSIS

7. This application is made under Mutual Assistance in Criminal Matters Act 1997

(MACMA) which came in to force on 1.6.1998.

8. Subsequent to MACMA Fiji had acceded core convention on mutual assistance in criminal matters by acceding to United Nations Convention against Transnational Organized Crime (UNCTOC) on 19.9.2017^[1].
   
9. While acceding to UNTOC the only reservation Fiji had sought was Article 35 paragraph 2 of UNCTOC^[2]. Both Fiji and US have reservation on the said provision and this has no relevance to this application.
   
10. Section 51 of Constitution of Republic of Fiji states,
    

“Parliamentary authority over international treaties and conventions

51. An international treaty or convention binds the State only after it has been

approved by Parliament”

11. UNCTOC was approved by the parliament of Fiji in 2017^[3] along with supplementary protocols under UNCTOC. In terms of Standing Order 130 the approval of international treaty was published in the Government Gazette^[4] This approval was given by parliament in terms of Section 51 of Constitution of the Republic of Fiji.^[5]
    
12. So in terms of Section 51 of the Constitution of Republic of Fiji, state is bound by provisions of UNCTOC.
    
13. In terms of UNCTOC the request for registration of a foreign warrant was made by Central Authority of United States to Central Authority of the Republic of Fiji.
    
14. This request is annexed to affidavit in support marked as AA1. The Central Authority of the Republic of Fiji for UNCTOC is the Attorney General. This is annexed as SS1 of the supplementary affidavit.
    
15. Under Section 31(2) of MACMA, the Attorney-General is required to authorize the Director of Public Prosecutions (DPP) in writing to apply for the registration of the order in Court. This was complied with and also presented to court by way of supplementary affidavit.
    
16. There is an authority granted by Attorney General in terms of Section 31(2) of MACMA.
    
17. Section 31(3) MACMA allows DPP to apply for registration of ‘foreign orders’.
    
18. Section 31 of the MACMA reads:
    

“31 (1) Where a foreign country requests the Attorney-General to make arrangements for the enforcement of-

(a) a foreign forfeiture order, made in respect of a serious offence, against property that is believed to be located in Fiji; or
(b) a foreign pecuniary penalty order, made in respect of a serious offence, where some or all of the property available to satisfy the order is believed to be located in Fiji, the Attorney-General may authorise the Director of Public Prosecutions, in writing, to apply for the registration of the order in the court.

[subs (1) am Act 2 of 2005s 12, effective 1 September 2005]

(2) Where a foreign country requests the Attorney-General to make

arrangements for the enforcement of a foreign restraining order, made in respect of a serious offence, against property that is believed to be located in Fiji, the Attorney-General may authorise the Director of Public Prosecutions, in writing, to apply for the registration of the order in the court.

(3) Where the Director of Public Prosecutions applies to the court for registration of a foreign order under this section, the court may register the order.
(4) A foreign forfeiture order registered in the court under this section has effect, and may be enforced, as if it were a forfeiture order made by the court under the Proceeds of Crime Ad 1997 at the time of registration.”

19. At the outset it should be noted that Section 31(2) and 31(3) of MACMA only allows “the registration of the order” of a foreign restraining order, by this court.
    
20. The orders that can be registered are the “enforcement of a foreign restraining order”. In this instance this is contained in the warrant annexed as AA2.
    
21. So the first issue is whether the warrant issued by US District Court for the District of Columbia annexed as AA2 can be considered as “enforcement of foreign restraining order” which is discussed later. If it cannot be considered the court can exercise its discretion so as to refuse the request for registration exercising its powers in terms of Section 31(3) of MACMA.
    
22. DPP had made this application by way of amended originating summons seeking an order,

“That a warrant to seize property subject to forfeiture be registered of the motor yacht Amadea with international Maritime Organization number 1012531”.

23. The jurisdiction of this court is confined to registration of a foreign order under MACMA.
    
24. The procedure for the registration has not been spelt out in the legislation and registration of orders in terms of Section 31(3) of MACMA is not mandatory. It grants discretion to court, but this discretion cannot be expanded to inquiry as to original jurisdiction of court exercised in forfeiture or restraint order Proceeds of Crime Act 1997 as argued by Respondent.
    
25. Respondent’s contention that enforceability attached to an order after registration of the same contained in Section 31(6) of MACMA, required the court to consider this application in terms of Section 19B(1) of Proceeds of Crime Act 1997 is without merit.
    
26. The enforceability after an order made under Section 31(3) of MACMA is not a ground to consider this application for registration of foreign restraining order as an exercise of original jurisdiction in terms of Section 19B(1) of Proceeds of Crime Act 1995.
    
27. By the same token, it is not mandatory for the court to register an foreign order and scope of that is to consider the factors stated in Section 31(2) of MACMA
    
28. The requirements in terms of Section 31 (2) of MACMA needs to considered in the exercise of power granted in terms of Section 31(3) of MACMA. These factors are defined in exclusive manner in Section 3 of MACMA that provides protection to rights. This is a limited scope.
    
29. As discussed earlier first requirement for registration of a foreign order is that it should be ‘foreign Restraining Order’ in terms of Section 31(2) of MACMA.
    

Foreign Restraining Order

30. So this can be any type of restraining order issued by a foreign jurisdiction. It may be in rem or in personam. It can be order that restrains a person or dealing of a property in terms of the country that issues restraint.
    
31. Interpretation of ‘foreign restraining order’ is provided in Section 3 of MACMA which states,
    

“Foreign restraining order means an order, made under the law of a foreign country, restraining a person, or persons, from dealing with property, being an order made in respect of an offence against the law of that foreign country.”(emphasis is added)

32. Since the interpretation used the words ‘means’ the definition of ‘foreign restraining order” is defined in exclusively in terms of MACMA. It must be issued under a law of a foreign country and in this instance it was issued in terms of US law, by US Court.
    
33. Annexed “AA2” is a warrant issued in rem against Amadea by a foreign court which had ratified UNCTOC.^[6] The restraining order contained in the said warrant is in terms of US laws and it states,
    

“In the Matter of Seizure of .....Amadea...

Warrant to Seize Property Subject to Forfeiture....

Pursuant to 50 U.S.C .. 1705(a); 18 U.S.C ....”

34. On the prima facie the intended orders of foreign court is contained in the warrant. They were issued under foreign law for seizure which is a restraint on Amadea.
    
35. The Urgent Request for ‘supplemental assistance’ to Central Authority of the Republic of Fiji made in pursuant to Articles 13 and 18 of UNCTOC is annexed as AA1 which stated that the restraint requested in relation to Amadea was made “As a preliminary step to forfeiture under U.S. law”.
    
36. So the request for registration of the said order contained in warrant, is a preliminary step to restrain Amadea as it is easily movability out of jurisdiction to international waters.
    
37. This is the assistance requested under UNCTOC and annexed AA1 to affidavit in support further stated US laws that applies to Amadea in order to issue a warrant of restrain in following terms.

“the vessel is subject to forfeiture under U.S. law as proceeds traceable to conspiracy to commit sanctions violations, pursuant to Title 18, United States Code, Section 981(a)(1)(C), and/or property involved in money laundering, pursuant to Title 18, United States Code, Section 981(a)(1)(A)."(emphasis is mine)

38. So, Applicant had established that there is a ‘foreign restraining order’ against Amadea in terms of the warrant annexed AA2 read with request for assistance to restrain it annexed as AA1 to affidavit in support.
    
39. The next issue to exercise power in terms of Section 31 (3) of MACMA of the court to register a ‘foreign restrain order’ is the alleged offence is ‘made in respect of Serious offence’ in terms of Section 31(3) of MACMA.
    
40. So in order to exercise the power in terms of Section 31(2) of MACMA the alleged offence must be a “Serious offence” in terms of MACMA. So the consideration is whether the warrant was issued in relation to ‘serious offence.’
    

Serious Offence

41. Definition of serious offence is found in interpretation provision of MACMA which is Section 3 which reads,

“Serious offence means an offence for which the maximum penalty prescribed by law is death, or imprisonment for not less than 6 months or a fine of not less than $500;”

42. Again this definition is exclusive, hence offence alleged needs to be not less than prescribed penal provisions.
    
43. According to AA1 and AA2, offences inter alia included Money Laundering which is an offence in Fiji.
    
44. Money laundering is considered a serious offence in Fiji as it attracts 20 years imprisonment, the same penalty applies in the United States of America.
    
45. Applicant had satisfied requirements under Section 33(2) and 33(3) of MACMA to obtain registration of the foreign order.
    
46. The last requirement is that applicant must believe that the restraining property is ‘believed to be lo be located in Fiji’.
    
47. There is no issue on that as there was an interim restraining order issued and it is in Lautoka wharf/port.

CONCLUSION

48. Applicant had established the requirements contained in Section 31(2) of MACMA in order to exercise the power granted to this court to register the warrant in terms of Section 31(3) of MACMA, issued in rem against Amadea. This is an exercise of limited jurisdiction for urgent mutual assistance made in terms of UNCTOC for registration of a foreign restraining order. This is a preliminary step for a forfeiture order in US courts. The request was made under UNCTOC for mutual assistance and by application of MACMA. Applicant had satisfied the requirements under MACMA for registration of orders contained in the warrant annexed as AA2 to the affidavit in support.
    
49. The warrant issued by United States District Court for the District of Columbia in Case No 22-sZ-9 (in the Matter of Seizure of the Motor Yacht Amadea with international maritime organization number 1012531 is to be registered in terms of Section 33(3) of Mutual Assistance in Criminal Matters Act 1997. For avoidance of doubt once the aforesaid order is registered, it has the same enforceability as if it were a restraining order made ‘in terms of Proceeds of Crime Act 1997 at the time of registration’ in terms of Section 31 (6) of MACMA. The cost of this application is summarily assessed at $3,000 to be paid by second Respondent to the Applicant, within 30 days.

FINAL ORDERS

1. The orders contained in warrant to seize the property (Amadea) subject to forfeiture issued by United States District Court for the District of Columbia in Case No 22-sZ-9 (in the Matter of Seizure of the Motor Yacht Amadea with international maritime organization number 1012531) is to be registered in terms of Section 33(3) of Mutual Assistance in Criminal Matters Act 1997.
   
2. The cost of this application is summarily assessed at $3,000 to be paid by Respondent to Applicant within 30 days.
   

Dated at Suva this 3^rd day of May, 2022.

.....................................

Justice Deepthi Amaratunga

High Court, Suva

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^[1] https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&clang=_en (3.5.2022)
^[2] Ibid. Reservation:
; &#F220;reji ves rves waivinaiving its sovereign rights and declares that it does not consider itself bound by the provisions of paragraph 2 of article 35.”
^[3] https://www.parliament.gov.fj/treaties/ (3.5.2022)
a) United Nations Convention against Transnational Organised Crime (UN CTOC) and the three Supplementary Protocols namely-

1. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, (‘Trafficking in Persons Protocol’);

2. Protocol against the Smuggling of Migrants by Land, Sea and Air, (‘Smuggling of Migrants Protocol’); and

3. Protocol against the Illicit Manufacturing of Trafficking in Firearms, their Parts and Components and Ammunition (‘Trafficking in Firearms Protocol’).

3.
^[4] https://www.parliament.gov.fj/wp-content/uploads/2017/03/Approval-of-International-Treaties-Extra-Gaz-27-April.pdf (3.5.2022)
“APPROVAL OF INTERNATIONAL TREATIES
PURSUANT to Standing Order 130(5), I hereby give notification that the following treaty has been approved by the Parliament
of the Republic of Fiji, on 26 April 2017—
(a) United Nations Convention against Transnational Organised Crime (UN CTOC) and the three Supplementary
Protocols namely—
(i) Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,
(‘Trafficking in Persons Protocol’);
(ii) Protocol against the Smuggling of Migrants by Land, Sea and Air, (‘Smuggling of Migrants Protocol’);
and
(iii) Protocol against the Illicit Manufacturing of Trafficking in Firearms, their Parts and Components and
Ammunition (‘Trafficking in Firearms Protocol’)”

^[5] Standing Order 130 reads “130 Approval of international treaties and conventions
(1) This Standing Order provides the process by which the Parliament approves an international treaty for the
purposes of section 51 of the Constitution.”
^[6] US ratification of UNCTOC on 3.11.2005
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&clang=_en (3.5.2022)