Republic of Djibouti, Gibson Dunn and Kroll severely criticised by High Court for campaign to crush innocent businessman

Mar 23, 2015

False accusations, lies and erroneous claims made against Abdourahman Boreh misled the court as the judge declares them "egregious examples of reprehensible conduct".

The English High Court today severely criticised the Republic of Djibouti, US law firm Gibson Dunn and Kroll investigators for misleading the court over a terrorism conviction in an improper campaign against prominent Djiboutian businessman Abdourahman Boreh and political rival of Djiboutian President Ismail Omar Guelleh. 

In his ruling published today and available here, Justice Flaux stated that he had been materially misled when granting the worldwide freezing order against Boreh and in today's ruling set aside that ruling.   The 83 page ruling also criticised the government, US law firm Gibson Dunn and business intelligence company, Kroll.

Mr Boreh, who was in court to hear the judgment, said:

I am deeply grateful to judge Flaux for clearing my name. The English justice system and courts have a truly well-deserved reputation for integrity and independence.

I am also deeply grateful to the Emirati authorities and courts for not handing me over to Djibouti so that I have been able to defend myself in England. 

The last years have been truly devastating for me and my family. I feel as if Djibouti, their lawyers and Kroll formed some kind of “hit squad” to destroy me and my family, spending tens of millions of dollars whilst people are starving in Djibouti. It cannot be justified on any level.

As a businessman who relies on his reputation and the ability to trade and obtain banking facilities, the false terrorism conviction and abuse of Interpol made me a pariah to former business partners and bankers. I do not know if this damage can ever be repaired.

For further information please call Yvonne Jefferies or Ben Davies.

Notes to editors

1.            The English High Court today severely castigated the Republic of Djibouti, City law firm Gibson Dunn and Kroll investigators for misleading the court in an improper campaign against prominent Djiboutian businessman Abdourahman Boreh and political rival of Djiboutian President Ismail Omar Guelleh.

2.            Boreh, a former friend and supporter of Guelleh, has been in exile since 2008 when he fell out with Guelleh. Since then, the Djibouti authorities have forcibly seized his assets in Djibouti, claiming millions of dollars in alleged taxes and issued various civil and criminal judgments against Boreh for embezzlement from his own companies. In 2010, Boreh was convicted for terrorism offences after being denied the right to defence lawyers of his choice by the Djibouti government. 

3.            Boreh has consistently maintained that the conviction was false and part of a personal vendetta by Guelleh to destroy him but it was only a year later that the truth was forced out of Djibouti and their lawyers by Boreh’s team through a series of letters and court applications. This revealed that that Djibouti Attorney-General Djama Souleiman Ali, Djibouti Anti-Corruption Unit head Inspector-General Hassan Isse Sultan and their lead lawyer Peter Gray of Gibson Dunn had been long aware  that the evidence underpinning the conviction was fatally flawed but continued to use it to harm Boreh internationally.

4.            The conviction was based on transcripts of  tapped phone calls between Boreh and 2 brothers Mohammed and Mahdi Abdillahi in which they discussed a successful event having taken place the night before and that there would be further such events on that and successive nights. The transcripts of the calls produced by the Djibouti authorities were dated 5 March 2009. Djibouti Attorney-General Ali prosecuting, alleged that the event “the night before” was a grenade attack on the Nougaprix supermarket in Djibouti on the evening of 4 March 2009. He also produced an alleged confession from Mohammed Abdillahi, Mahdi having died after a late evacuation to hospital whilst in police custody.  The Djibouti court convicted and sentenced Boreh to 15 years imprisonment for inciting the Nougaprix grenade attack.

5.            Using this conviction, the Djibouti government enlisted the services of Kroll, US private investigators as well as Gibson Dunn to devise an extensive campaign to crush Boreh by launching civil and criminal proceedings against him in multiple jurisdictions, obtaining court orders to freeze all his assets worldwide and using the services of INTERPOL to have him arrested in Dubai and extradited to Djibouti.

6.            This strategy almost succeeded - Boreh was arrested in Dubai in 2013 and faced extradition proceedings which lasted almost a year, although he was eventually released and extradition refused by the Dubai authorities.  Djibouti also obtained a freezing order over Boreh’s assets worldwide from the English high court in September 2013 based on evidence including Boreh’s false terrorism conviction. Using the English decision obtained by misrepresentation, the Djibouti authorities and Gibson Dunn sought assistance against Boreh from US authorities including Homeland Security, the Department of Justice and the FBI as well as authorities in the UAE and Switzerland. Djibouti government representatives and their lawyers also used state privileges to secure meetings with Interpol to enlist its support in capturing Boreh.   

7.            Boreh’s team later established that the transcripts were misdated and the calls in fact took place on 4 March 2009, some 5 hours before the Nougaprix attack.  This meant that the calls could not have been about the Nougaprix grenade attack “the night before”. It also meant that Mohammed Abdillahi’s alleged confession was unreliable.  Boreh’s lawyers Byrne and Partners began raising this issue with Gibson Dunn in early September 2014 and when no satisfactory answers were received, they applied to the English court for an order that Djibouti and their lawyers file affidavits explaining the discrepancy and whether any lawyers within Gibson Dunn or Djibouti’s representatives knew about the misdating -  and when. 

8.            Gibson Dunn originally gave the impression that neither they nor their clients had been aware of the misdating until Byrne’s September letter and that it was an inadvertent and immaterial typographical error. The judge nonetheless ordered the affidavits to be produced. When produced on 29 December 2014, Gray as well as Ali and Sultan admitted on affidavit that they had known about the misdating - before they filed the extradition request in Dubai and applied for the worldwide freezing order in England. 

9.            The judge found that he had been materially misled when granting the worldwide freezing order against Boreh and ordered Gray to attend before him for cross-examination following an application by Boreh for discharge of the freezing order. Although Boreh’s lawyers requested the Ali and Sultan also attend, they declined to do so. Gray was cross-examined over 2 days by Dominic Kendrick QC for Boreh. Lord Falconer, the former Lord Chancellor appeared for Djibouti. Gray and Gibson Dunn were separately represented. 

10.          In a highly critical judgment against Djibouti, Gray and Kroll, the judge today discharged the worldwide freezing order against Boreh.  He held that Gray knew – before applying for the freezing order -  that the terrorism conviction was unsafe, but deliberately concealed this by using “ambiguity to hide the truth” in his determination that the terrorism allegation stuck against Boreh.   Describing Gray’s language of “fudging the error of the date” to be “the language of concealment and not the approach of a solicitor of integrity”, he criticised Gray for having treated   “perfectly reasonable” correspondence from Byrne and Partners “with disdain and then engaged in a course of thoroughly evasive and positively misleading conduct”. The judge described Gray’s email to Djibouti’s then leading counsel Khawar Qureshi QC in which he said “I think we are on thin ice if we say we didn’t ever know about this from the beginning”, as “not the comment of an honest solicitor”. He found Gray’s attempts to justify his response to Byrne and Partners as “acceptably evasive” was “breathtaking” as an “attempt by an English solicitor and partner in a City firm to justify a positively misleading letter to the other side’s solicitors…This letter was clearly dishonest and it was designed to deceive Byrne and Partners”. 

11.          The judge also criticised Djibouti and Kroll, referring to meetings in August 2013 attended by Gibson Dunn, Kroll, Al Tamimi (Djibouti’s Dubai lawyers), Djibouti Attorney-General Ali as well Djibouti Anti-Corruption Unit head, Inspector-General Hassan Isse Sultan, where a strategy was agreed to “avoid at all costs for Boreh to be released and passport given back” and “fudge the error of the date” of the phone transcripts underpinning the false terrorism conviction.

12.          He found that Kroll’s EMEA chief Tom Everett-Heath exerted “what can only be described as improper commercial pressure on” Boreh “in the form of threats to continue and expand the campaign against him through use of the terrorist charges made on behalf of Djibouti by Kroll.” Rejecting Lord Falconer’s submissions on behalf of Djibouti, the judge held that “the threats made to Mr Boreh go way beyond what is permissible even in the hardest fought commercial litigation. What was being said was that, if he settled the litigation (in fact for more than it was worth), he could avoid the risks of extradition to Djibouti, being in prison there for the rest of his life, money laundering and similar criminal-related actions in the US and elsewhere which would force his ‘money out of the system’, those actions being expanded to members of his family, restrictions on travel and having to spend the rest of his life “looking over his shoulder’….[o]n any view, they amounted to thoroughly improper pressure on the part of Djibouti. The fact that it was prepared to trade the terrorism charge for a lucrative financial settlement speaks volumes as to whether it genuinely believes Mr Boreh is a terrorist. …. [N]o state would agree to sell freedom to a person it genuinely believed to be a terrorist. It is striking that Djibouti called no evidence to explain what instructions were given to Kroll or how these threats were made, notwithstanding that affidavits were served from both Mr Sultan and Mr Ali….I infer that Djibouti did instruct Kroll to adopt this strategy and that they knew it was improper”.

13.          Rejecting Lord Falconer’s submissions that Djibouti should not be punished for misconduct on the part of Gray, the judge said “Djibouti are not blameless ingenues here. The strategy of concealment from the courts that the conviction was unsafe …was developed at the meeting at Kroll on 27 August 2013 attended by Mr Ali and the meeting the same day at Al Tamimi attended by Mr Ali and it is to be inferred they agreed with this strategy. Furthermore, Mr Sultan attended the (freezing order hearing) and although he says in his affidavit that he did not appreciate that reference was being made to the wrong transcript, in light of the fact that he was aware of the strategy, I am extremely sceptical about that evidence and he has not attended to be cross-examined.” The judge criticised Djibouti for making a “desperate attempt” to concoct false evidence of a grenade attack on 3 March 2009 to make Boreh’s conviction stick rather than take steps to set it aside once they discovered the error.

14.          The judge stated “There are other aspects of Djibouti’s conduct which can only be described as reprehensible. :(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; (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.

15.          Boreh, who was in court to hear the judgment, said:

 “I am deeply grateful to judge Flaux for clearing my name. The English justice system and courts have a truly well-deserved reputation for integrity and independence.

 I am also deeply grateful to the Emirati authorities and courts for not handing me over to Djibouti so that I have been able to defend myself in England. 

The last years have been truly devastating for me and my family. I feel as if Djibouti, their lawyers and Kroll formed some kind of “hit squad” to destroy me and my family, spending millions of dollars whilst people are starving in Djibouti. It cannot be justified on any level.

As a businessman who relies on his reputation and the ability to trade and obtain banking facilities, the false terrorism conviction and abuse of Interpol made me a pariah to former business partners and bankers. I do not know if this damage can ever be repaired.