Djibouti government criticised as UK court unfreezes businessman's assets

London, Mar. 25, GNA - The government of Djibouti came in for strong criticism on Monday, as the High Court in London unfroze the worldwide assets of multimillionaire Djiboutian businessman Abdourahman Boreh who had been wrongly found guilty on terrorism charges in Djibouti.

The English solicitor who represented the Djiboutian government, Peter Gray of Gibson, Dunn and Crutcher, was equally censured by Mr Justice Flaux for misleading the court, which led to the initial freezing order on Mr Boreh's assets.

Mr. Boreh, a former confidant of President Ismail Omar Guelleh of Djibouti, challenged the freezing order.  

He had been charged in his absence with terrorism offences following a grenade explosion in a supermarket in Djibouti, which was carried out on March 5, 2009 by an organisation that had been engaged in subversive activities against the government.

The case against Mr. Boreh hinged on two telephone conversations he had had with two brothers who said an 'act' had been 'completed' in Djibouti.  

As a result Mr. Boreh was found guilty and the government of Djibouti had sought to extradite him from Dubai.

But Mr. Boreh, who had by then fallen out with President Guelleh, said that the charge was politically motivated.

However, things took a different turn in November last year when the matter came up again before Mr Justice Flaux who discovered that he had been misled about the date of the conversations between Mr. Boreh and the brothers, which the government claimed had taken place on March 5, 2009.

It turned out that the conversations took place on March 4, before the grenade attack, and therefore could not possibly relate to the terrorist incident - thus making the conviction of Mr Boreh and others unsafe. Indeed, the coded discussions were referring to the distribution of anti-government leaflets in Djibouti.

Nevertheless, the government of Djibouti went ahead on September 11, 2013 and applied to the Commercial Court, a sub-division of the Queen's Bench of the High Court of Justice in London for Mr. Boreh's assets to be frozen.

On Monday, Mr Justice Flaux revoked the original freezing order and refused an application for a fresh one on the basis 'that Djibouti has not come to the court with clean hands'.

During the hearing earlier this month, it came out that Mr. Gray, who is based in Dubai, had failed to inform the courts in Dubai and London that Mr Boreh's conviction was unsafe and he used this to push the case for Mr. Boreh's extradition to Djibouti.

Mr. Gray went further to work out an elaborate strategy of not disclosing to the court the suspect nature of Mr. Boreh's conviction.

Mr. Justice Flaux said in his judgment:   'Mr. Gray embarked on the evasive course of conduct which he did, that he thought that what he was doing was, if not on specific instructions of his clients, at least in [their] best interests.'

He went on: 'That evasive approach could not be justified by the assertion in his evidence that he thought that, even when the transcripts were given the correct date, Mr Boreh had a case to answer.

'Some false evidence was produced by his clients, which conveniently not only asserted there had been an attack, but also explained why no-one had heard about it. However, by 28 August 2013, Mr. Gray knew to put it at its lowest that this so-called evidence would not bear scrutiny and, by the time of the hearing on 10 and 11 September 2013, he knew that he had no evidence of any grenade attack on 3 March 2009.'

Mr Justice Flaux went on: 'In any event, even if he had convinced himself that Mr Boreh still had a case to answer on the basis of the telephone transcripts with the correct date, the proper and honest course to have taken would have been to ensure that the Dubai court and, in due course, the English court was made aware that the original conviction was unsafe and the evidence on which it was based unreliable, so that the conviction could not stand and would have to be quashed.'

He said that because 'it was Mr Gray who deliberately misled the court does not enable Djibouti to say that the freezing order should stand. Djibouti are not blameless ingénues here'.

Mr. Justice Flaux continued: 'There are other aspects of Djibouti's conduct which can only be described as reprehensible and which inevitably bear upon the question whether it would be appropriate to grant a fresh freezing injunction:

'(i) their continued use of my judgment internationally notwithstanding that they knew it was based on a misapprehension;

'(ii) the so-called evidence they have produced of a grenade attack on 3 March 2009 when they can have no genuine belief that there ever was such an attack; '

(iii) the continued reliance upon the unsafe conviction and the unreliable confession in their criminal complaint in Dubai in June 2014, after their extradition request had failed and (iv) the thoroughly improper pressure put upon Mr Boreh by Kroll on behalf of Djibouti to settle the litigation.

'These are four particularly egregious examples of reprehensible conduct, all of which fall a long way short of the standards of behaviour which the court is entitled to expect of a sovereign state,' he added.

Mr. Justice Flaux acknowledged that, 'somewhat late in the day Djibouti is taking steps to remedy some of this misconduct' such as asking Interpol to have the Red Notice on Mr Boreh lifted.

But he noted: 'In other respects, there is no clear assurance that Djibouti will not continue to act in a way which means their hands are still dirty, for example by relying on the so-called evidence it has gathered of a grenade attack on 3 March 2009 or by improper pressure on Mr Boreh to settle the present proceedings.

'It follows that I would, if necessary both discharge the original freezing injunction and refuse the application for a fresh freezing injunction on the alternative ground that Djibouti has not come to the court with clean hands.'

GNA