Flight PS752: Bereaved families struggle to seize Iranian assets

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Flight PS752 : Bereaved families struggle to seize Iranian assets

The destruction of Ukraine's civilian apparatus left 176 dead , including 63 Canadians, at Tehran airport on January 8, 2020.

A ceremony in memory of the victims of Ukraine International Airlines flight PS752 in January 2020.

Families of Canadian victims of Flight PS752 have begun legal proceedings to seize Iranian assets in Canada and abroad in a bid to seek compensation following the downing of the plane of Ukrainian International Airlines. On the third anniversary of the disaster, however, their troubles are not over.

The lawyers for the families of the Canadian victims have never hidden their intention to get their hands on Iranian assets to obtain financial compensation under the Belobaba judgment which Tehran has so far refused to pay.

An Ontario court ruled in May 2021 that the destruction of the device was an intentional terrorist act, paving the way for possible compensation.

Iran, whose authorities were convicted in absentia, said Judge Belobaba's decision was baseless.

Tehran ruled in a statement that the Ontario court had neither jurisdiction nor jurisdiction to investigate an aircraft crash outside its borders.

“If Iran had sent representatives to the trial in Toronto, it would have run the risk of receiving an unfavorable verdict and the testimony of senior regime officials would have exposed their government to accountability and humiliation.

— Daniel Tsai, lawyer and lecturer at the University of Toronto

Lawyer Daniel Tsai, however, speaks of a symbolic judgment intended to win the case and comfort the families of the victims.

It's a decision with no real powers or enforcement capabilities for the judgment to be truly enforced, says Mr. Tsai who served as a policy adviser to the federal government.

Canadian families were able to sue the Islamic Republic of Iran in civil court under federal law, which recognizes Iran and Syria as state sponsors of terrorism.

The State Immunity Act was amended by the Harper government after Zahra Kazemi's family lost in the Supreme Court of Canada, which ruled in 2014 that a state cannot be sued domestically. .

Zahra Kazemi is a Canadian photographer who died in custody in Tehran in 2003.

< p class="sc-v64krj-0 dlqbmr">In Canada, any foreign government is protected from domestic lawsuits under the State Immunity Act, with some exceptions.

Under their civil action, a first group of families representing six victims have already obtained $107 million in compensation from an Ontario court in January 2022.

With such a sum, the judge sent a message to Tehran that Iran's behavior in this case is heinous and reprehensible, and that it should take notice, Tsai continued.

“No court ruling will ever bring their loved ones back, but courts across the country should still take every opportunity to expose loud and clear in public the conduct of the Iranian regime in this matter.

— Jonah Arnold, Lawyer for Some Canadian Families

In an email, the lawyer for one group of families, Jonah Arnold, says a second group is about to be compensated.

We hope he will get the same amount as the first group, he wrote, recalling that his customers are still deeply affected by the disaster.

Iran has not had an ambassador in Ottawa since 2012. The embassy still exists, but it is not known if all the goods inside (furniture, carpets, tables..) were repatriated to Iran.

Mr. Arnold, however, refuses to reveal how he intends to go about seizing Iranian assets in the country or abroad. x27; foreign.

His firm nevertheless filed a motion in an Ontario court to first seize the former diplomatic assets of the Islamic Republic of Iran in Ottawa.

A decision is expected shortly on this matter.

Seizure of assets of a foreign country in Canada or elsewhere in the however, the world is no small feat.

It is not certain that Iran keeps funds in Canadian banks and if the Islamic Republic has any, it must be under nominees, according to Daniel Tsai.

There are even lawyers who unknowingly participate in hiding potential assets that Iran may have in Canada, but who believe they are acting on behalf of individual clients unrelated to the regime, says- it.

“What is tricky about this civil case is that Iran has no assets in Canada and the diplomatic assets of any country are exempt from seizure under international conventions.

—Hassan Ahmed, Professor of Law at the University of British Columbia

Families must obtain a seizure order from a Canadian court which obliges a bank to withdraw a customer's assets and hand them over to another party.

This exercise is practically like looking for a needle in a haystack, because you will need to obtain confidential information, explains Daniel Tsai.

Entering money from bank accounts is complicated, but not impossible in theory.

Mr. Tsai quotes the name and address of the institution, the name of the account holder and the account number.

He points out that some lawyers do business with private investigators to obtain this kind of information or rely on the incidental intervention of whistleblowers.

But funds can disappear before bank accounts are identified and located, he says.

He adds that Iran may also have trust or cryptocurrency funds, which are even harder to trace, or hide behind shell or digital companies.

< p class="sc-v64krj-0 dlqbmr">It is likely that the Islamic Republic of Iran has accounts in Swiss banks.

Professor Hassan Ahmed claims that lawyers are not out of the woods if they manage to locate the money of the Islamic regime in Switzerland for example.

According to him, a reciprocal agreement between Canada and Switzerland would be needed for a Swiss court to agree to enforce the seizure order of the Ontario court.< /p>

The Swiss court should further ensure that the Iranian funds stored in Switzerland do not relate to diplomatic assets and that they are not protected by the relations between Bern and Tehran, he says.

Another possibility is to intercept the airport landing fees that the state-owned Iran Air must pay to use the facilities where it lands in the West such as Paris, London or Vienna.

In such a case, families should be able to forfeit such costs by garnishment from a court.

It is not guaranteed that a court in the country which is a destination of Iran Air will recognize the decision of a Canadian court, because it will have to weigh the advantages and the disadvantages of such a measure, says Mr. Tsai.

The CEO of Iran Air is the Minister of Transport of the Islamic Republic of Iran.

According to Mr. Tsai, any foreign court will have to ask itself an inevitable question: is it reasonable to step into the shoes of a Canadian court at the request of a private civil party?

There is also a crucial question on the sovereignty of States which, according to him, comes into play.

He recalls that this It is not Canada that is involved in this cause, but Canadian families organized as civil parties.

Canada could only play the role of intervenor if it made it a diplomatic matter, he said.

Lawyers for the families of the victims had to #x27; elsewhere already denounced on this subject the inertia of Ottawa in this file.

Iran Air does not fly to Toronto Pearson Airport or anywhere else in the country; seizing a company plane couldn't have been easier anyway according to the experts.

Mr. Tsai adds that it doesn't matter that Canada has allies like France. According to him, a French court would probably not recognize the Canadian judgment on its territory. To each country, its jurisdiction, he says.

He clarified that a Canadian court would also not agree to do so, whether from an allied country or a state outside the nation. like Iran.

In the end, does the Belobaba judgment comply with the laws of the country where the families covet Iranian assets?, asks Mr. Tsai.

A Russian plane stranded at Toronto's Pearson airport since Canadian airspace was closed to Russian-registered aircraft due to the war in Ukraine.

It would also be possible in theory to seize an aircraft from Iran Air in order to sell it and recover the sums to compensate the families. Such action, however, would be very complicated and controversial.

Ahmed says families should first get a court injunction to stop Iran Air aircraft from leaving Canadian airspace, if the company was serving an airport in the country or any other airspace air.

“A plane is an asset that could help enforce the Belobaba judgment, but the court will have to take into account the balance of inconvenience between the compensation to the families and the harm caused to the passengers of the flight in question. »

—Hassan Ahmed, lawyer specializing in human rights in the Middle East

The professor recalls that these passengers paid a plane ticket to return home and that the company air force would suffer a loss in relation to the loss of one of its aircraft.

The judge should establish whether the immobilization of the plane and its passengers, which had nothing to do with the destruction of flight PS752, is not sufficiently inconvenient to enforce the judgment on the compensation of the families of the victims of the Ukrainian apparatus, he specifies.

Debris of flight PS752 which crashed near Tehran on January 8, 2020, after being hit by a missile.

Mr. Ahmed adds that it would be even more difficult to resort to such a means in the countries where Iran Air company flies, since it would be necessary to seek a court of the country in question.

It is therefore preferable to covet Iranian assets in Canada rather than abroad and planes are not assets in general that one uses to enforce a court's decision, he says.

An appeal to the International Criminal Court (ICC) or the International Court of Justice (ICJ) would not be without interest.

At the time of the disaster , there was no war between Iran and Ukraine, but Judge Belobaba had suggested that the destruction of the plane in flight could constitute a crime against the plane. Humanity.

The International Criminal Court, headquartered in The Hague, is a tribunal that prosecutes individuals for war crimes or crimes against humanity.

Only problem: it is essential that the respondents, Iranian officials for the ICC proceedings and the Iranian state for the ICJ, appear before these tribunals.

However, Iran would never agree, according to Mr. Ahmed, to bring those responsible for the disaster to justice or to appear as a defendant in such a case or to participate in any investigation whatsoever.

A default judgment, like the Belobaba decision in Ontario, is not available in an international court of justice, he explains.

The International Court of Justice, also headquartered in The Hague, is the United Nations court that prosecutes states for violations of international treaties.

Mr. Ahmed recalls that Iran has already offered compensation of US$150,000 per family under its own compensation process, but there is no evidence that Canadian families have received anything from Tehran.

According to him, diplomacy remains the only possible way to help these families, because he doubts that they will ever see the color of their money.

Ottawa continues to impose sanctions against the Iranian regime pursuant to the Special Economic Measures (Iran) Regulations.

< p class="e-p">So far, 99 individuals and 181 Iranian entities, including the Islamic Revolutionary Guard Corps, have been sanctioned.

It is, however, more of a response to the Iranian nuclear issue, Iran's support for Russia in the Ukraine conflict, or human rights abuses than a response. to the downing of flight PS752.

Canada has nevertheless joined an action group with Sweden, the United Kingdom, Ukraine and Afghanistan to start a dialogue with Tehran on the litigation faced by the families of all the victims in these countries (Germany represents three Afghan victims who have taken refuge on its territory, editor's note).

Canadian Minister of Foreign Affairs, Mélanie Joly.

Global Affairs writes on its website that the Five Eyes must further coordinate legal initiatives that seek redress from Tehran and hold Iran accountable for its actions so that all families of the victims obtain justice.

The coordination group also took action on December 28, citing the Montreal Convention of 1971, which regulates offenses against crime; civil aviation.

Ottawa has thus asked Tehran to submit to binding arbitration to settle the dispute relating to the destruction of the aircraft.

In the absence of arbitration, the Agreement provides that the dispute may be submitted within 6 months to the International Court of Justice.

Relatives of the victims gathered in kyiv one year after the crash of flight PS752, shot down in error by the Iranian army near Tehran.

Mr. Ahmed acknowledges, however, that Iran is not a state to be trusted. Iran has not been an honest broker in the past, he says.

Mr. Tsai adds that Canada has stood behind the families of the victims, even though Ottawa can be accused of not doing enough for them.

This is a public relations exercise, however, because diplomatically Canada does not support them, he said.

The Embassy of Iran in Ottawa. Canada and Iran officially severed diplomatic relations in 2012, but Daniel Tsai believes the two countries still have access to an informal communications channel.

The lawyer claims, however, that Canada could decree that the Iranian embassy in Ottawa is no longer a diplomatic asset so that the families can seize it and sell it to recover the amounts. necessary for their compensation under the Belobaba judgment.

Mr. Tsai adds, however, that Canada fears doing so, because other nations might do the same about Canadian assets on their territory.

Although Canada does not have an embassy in Tehran, it maintains diplomatic and trade relations with Iranian partners, he explains.

The same is true with the Iranian diaspora in Canada: would it be permissible to punish family members of officials in Iran at home?

Little Tehran in North Toronto, home to the third largest Iranian diaspora in America after New York and Los Angeles.

Mr. Tsai says there is a risk that Iran will retaliate against Canadian-Iranians traveling back and forth between Canada and their home country for business or other reasons. family.

“The Islamic regime could nationalize the assets that Canadians with dual citizenship have in Iran or go after their families back home directly.

— Daniel Tsai, a lawyer and senior lecturer at the University of Toronto

He recognizes that Canada, if it hasn't already, could put Iranian officials on a list of people non grata in the country, but still these officials must live or travel to Canada.

The Iranian flag was painted on a wall of the former US Embassy in Tehran.

Mr. Ahmed adds that it would nevertheless be ill-advised to deport the son or daughter of an Iranian minister who is studying, for example, at university in Canada.

Such a measure would be arbitrary and would be challenged in our courts under our Immigration laws, he says.

He points out that the Minister's child does not #x27;is not responsible for the downing of the Ukrainian plane nor is it a matter of violating the fundamental rights of individuals in order to enforce the judgment of #x27;an Ontario court.

Mr. Tsai disagrees. He accuses Ottawa of acting only out of ostentatious virtue, that is to say that it seeks to be virtuous in this file.

Canada would be going beyond its moral principles if it penalized Iranians who are the proxies of the Islamic regime on its territory, he concludes. Still need to identify them according to him.

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