K.K.

LUTHRA MEMORIAL MOOT COURT, 2019

URN: 1561

THE K.K. LUTHRA MEMORIAL MOOT COURT, 2019

BEFORE THE HON'BLE SUPREME COURT OF GRANICUS

IN RE:

STATE OF ISLANDER APPELLANT

VERSUS

STATE OF GRANICUS RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF THE RESPONDENT

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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

TABLE OF CONTENTS

1. Table of contents ....................................................................................................................... 2

2. Index of Authorities ................................................................................................................ 3-4

3. Statement of Facts ................................................................................................................... 5-6

4. Statement of Issues .................................................................................................................... 7

5. Summary of Arguments ........................................................................................................... 8-9

6. Written Pleadings ................................................................................................................ 10-22

ISSUE 1. Whether The State Authorities Of Granicus Has The Permission To Exercise The
Jurisdiction To Carry Out The Arrest Of Mr. Andrew Dark On The Charges Of Money
Laundering And Other Subsequent Acts (Seizure Of Walhala One And Freezing Of The
Bank Accounts) ..................................................................................................................... 10-16

ISSUE 2. Whether The Actions Of Granicus State Authorities Constitute Violation Of

Diplomatic Immunity Of Mr. Andrew
Dark........................................................................................................................................ 17-19

ISSUE 3. Whether The Accusation Of Mala Fides On Part Of Granician Government Authorities
Is Valid? ................................................................................................................................ 19-22

7. Prayer ........................................................................................................................................ 23

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INDEX OF AUTHORITIES

STATUTES:

 The Proceeds of Crime Act, 2017

 Constitution of Granicus
 The Indian Evidence Act, 1872
 The Prevention of Money Laundering Act, 2002

INTERNATIONAL CONVENTIONS:

 International Convention Against the Taking of Hostages (1979)

 The Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons (1973)
 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment (1984)
 Vienna Convention on Diplomatic Relations, 1961
 Vienna Convention on Special Missions, 1961
 United Nations Convention against Transnational Organized Crime, 2000

CASES:

 AG of the Government of Israel Vs. Eichmann

 Alchemist Ltd. Vs. State Bank of Sikkim,(2007) 11 SCC 335
 B. Rama Raju Vs.UOI, (2012)1MLJ419
 Democratic Republic of the Congo Vs. Belgium, [2002] ICJ 1
 DPP Vs. Joyce, [1946] AC 347
 Equatorial Guinea Vs. France, ICGJ 513 (ICJ 2016)
 Ferrini Vs. Federal Republic of Germany, ILDC 19 (IT 2004)
 M. P. Industries Ltd. Vs. IPO, [(1970) 2 SCC 32]
 Murlidhar Vs. the State of Rajasthan, AIR 2005 SC
 Prithipal Singh Vs. State of Punjab, (2012) SCC
 S.S. “Lotus”, France Vs. Turkey ICGJ 248 PCIJ (1927)

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 Sarosh Munir khan Vs. The Deputy Director, 534/MUM/2013.

 State of Madhya Pradesh Vs. Awadh Keshore Gupta, AIR 2004(SC)
 State of Rajasthan Vs. Union of India, [1977] 3 SCC 592
 State of WB Vs. Mir Mohammad Omar, AIR 2000 SC 2988
 United States of America Vs. Fawaz Yunis, 288 U.S. App D.C.129 (1991)
 UNITED STATES OF AMERICA Vs. Manuel Noriega, 746 F. Supp. 1506 (1990)
 United States Vs. Rodriguez 575 U.S. (2015)
 United States Vs. Zehe, 601 F. Supp. 196 D. Mass. (1985)
 U.S. Vs. Devyani Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014)

BOOKS:

 C Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic

Problem of International Criminal Law, (2009) 9 Int’l Crime L Rev 187
 John G McCarthy, The Passive Personality Principle and its Use in Combatting
International Terrorism, Volume 13, Issue 3, Article 3 (1989)

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STATEMENT OF FACTS

BACKGROUND

Islander, a country which became independent in 1961, was previously colonized by Granicus.
After becoming independent, Islander was ruled by Mr. Tyereus Dark and has been run as a
dictatorship masked as an oligarchy. During Mr. Dark’s regime, Islander was fashioned as a tax
haven and it was a dream destination for all nations to set up corporations. After Islander got
developed as a Financial Nerve Centre, Mr. Dark nationalized the large sugar plantations in
Islander and converted it into special ‘financial zones’. Mr. Dark also set up opaque banking
system in Islander guaranteeing secrecy to both national and international investors.

On the other hand, Granicus is a democratic federation and a secular republic. It is second largest
in the world by population, fifth largest in area, has third largest economy measured by GDP and
second fastest growth rate amongst developed countries. Drenner Financials is known to be the
largest Financial services company in Granicus. Drenner Advisors, a company incorporated in
Islander, is said to be the holding company of Drenner Financials.

Both Islander and Granicus are said to share common ancestry.

ROLE OF MS. ARIA DARK

In 2011, Ms. Aria Dark, daughter of Mr. Tyereus Dark, came to power in Islander with the
support of large number of heads of banks, on the demise of her father.

ROLE OF MS. AISHA DRENNER

Ms. Aisha Drenner became the head of State of Granicus in the 2016, on the plank of
spearheading corruption, terrorism and money laundering. Ms. Drenner’s son and daughter run
Drenner Financials in Granicus, which was previously, before coming into power managed and
controlled by Ms. Aisha Drenner herself.

DISINVESTMENT POLICY IN ISLANDER

In 2014, Ms. Aria Dark presided over a huge disinvestment policy. The policy came into force in
2016. On disinvestment, a company by the name of Walhala Industries, headed by Ms. Dark’s

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nephew, Mr. Andrew Dark, began taking over a large number of government companies that
were targeted for disinvestment. Consequently the Airline, Hotel and Banking Industries were
taken over by Walhala Industries.

NEWS REPORTS

While the disinvestment policy was in force, there were a series of investigative news reports in
Islander indicating the association of Walhala Industries and Drenner Advisors. The reports also
indicated that money obtained by Ms. Aria Dark, and her associates in the Islander government
and other associates linked to even the Granician government, through dubious means were
being routed through Drenner Advisors into Walhala Industries between 2012-2015, which were
further used to make investments in Airline and Hotel Industries of Islander.

VISIT OF MS. ARIA DARK TO GRANICUS

Furious with the investigative reporting which is said to have originated from Granicus, and
maintaining the fact about no association of Walhala Industries and Drenner Advisors and
further of Walhala Industries being a separate legal entity, Ms. Aria Dark decided to make an
official visit to Granicus to lodge a diplomatic protest in Granicus itself.

ACTS SUBSEQUENT TO VISIT

On 28th March 2018 Ms. Aria Dark along with her nephew landed in Grancius to clear the air on
the association of Walhala Industries and Drenner Advisors. Both Ms. Aria Dark and Mr.
Andrew Dark were accorded proverbial red-carpet welcome and were escorted to separate
limousines. On reaching the hotel, where media personnel were waiting for her, Ms. Aria Dark
agreed to an impromptu question hour session with the media. She was asked for her opinion on
what she thought about the arrest of Mr. Andrew and the seizure of Walhala One. Realizing that
the questions have material connection with what had transpired over the past half hour, Ms.
Dark rushed to the hotel and was made aware by her escort of the events of arrest of Mr. Andrew
Dark, the seizure of Walhala One and the freezing of bank accounts of Ms. Dark.

Ms. Dark sought legal advice from the Islandic Embassy and through local lawyers, filed a
petition before the Supreme Court of Granicus challenging the actions of authorities of Granicus
Government.

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STATEMENT OF ISSUES

Issue 1. Whether the state authorities of Granicus has the permission to exercise the
jurisdiction to carry out the arrest of Mr. Andrew Dark on the charges of money
laundering and other subsequent acts (seizure of Walhala One and freezing of the bank
accounts).

[1.1] Jurisdiction under the domestic laws of Granicus.

[1.2] Jurisdiction under International Law.

[1.3] The subsequent acts of seizure of Walhala one and freezing of accounts was made as it
related to the proceeds of crime originating from money laundering.

Issue 2. Whether the actions of Granicus state authorities constitute violation of Diplomatic
immunity of Mr. Andrew Dark.

[2.1] Entitlement of Diplomatic Immunity

[2.2] Denial of Diplomatic Immunity

Issue 3. Whether the accusation of Mala Fides on part of Granician government authorities
is valid?

[3.1] Actions of Granician government authorities are a part of its sovereign functions.

[3.2] Burden of proof

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SUMMARY OF ARGUMENTS

Issue 1. Whether the state authorities of Granicus has the permission to exercise the
jurisdiction to carry out the arrest of Mr. Andrew Dark on the charges of money
laundering and other subsequent acts (seizure of Walhala One and freezing of the bank
accounts).

[1.1] It is humbly submitted before the Hon’ble Supreme Court that the offence of Money
Laundering is a crime in the territory of Granicus and stringent laws have been framed to combat
the offence by enacting The Procceds of Crime Act, 2017. The sections of this Act empowers the
state authorities of Granicus to exercise the jurisdiction and arrest Mr. Andrew Dark for the
offence of Money Laundering.
[1.2] The International Law principles such as Transboundary Crimes, Passive Personality
Principle and Protective Principle provides for laws even when the disputed offence has not
taken place within the territory of the State exercising jurisdiction but it has an impact on the
concerned territory. These principles state that some crimes are of such heinous character that
they ought to be punished even across the boundaries.
[1.3] The seizure of the Walhala One and the freezing of the bank accounts of Ms. Aria Dark
have been done as part of preventive measure. The Domestic Statute of Granicus empowers the
Directorate of Investigation to take such measures. The following acts have been done for the
Aircraft and the bank accounts belongs to the proceeds of crimes originated from the act of
Money Laundering.

ISSUE 2. Whether the actions of Granicus State Authorities constitute violation of

Diplomatic Immunity of Mr. Andrew Dark.

[2.1] It is most humbly submitted before the Hon’ble Supreme Court of Granicus that the actions
of Granician State Authorities do not constitute violation of Diplomatic immunity as Mr. Andrew
Dark is not in the first place entitled to any Diplomatic immunity. It has been clearly stated in
the problem that Mr. Andrew Dark visited Granicus in the capacity of nephew. Therefore, the
action to arrest Mr. Andrew Dark was in consonance with the municipal law and the
International Convention obligations.

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[2.2] Even if Mr. Andrew Dark was entitled to Diplomatic immunity, this immunity can be
denied for the actions done in personal capacity as observed through various precedents. Hence,
there has been no violation of Diplomatic immunity of Mr. Andrew Dark.

ISSUE 3. Whether The Accusation Of Mala Fides On Part Of

Granician Government Authorities Valid?

[3.1] The arrest of Mr. Andrew Dark was made in concurrence with the sovereign functions of
the State of Granicus. Also the arrest has been made with a view to punish illegal legitimization
of money by Mr. Dark because such actions pose serious threat to the economy and well being of
the citizens of Granicus. The contention raised by the Islander also forms the basis of act of
money laundering on their part.

[3.2] The accusation of mala fides on part of Granician Government authorities has been raised
by prosecution, hence, the burden of proof is on them to prove their non involvement in the
offence of money laundering. It is seen in most of the common law countries that the burden of
proof to prove innocence in the cases of Money Laundering falls upon the one accused of the
offence. So here in this case, the burden of proof lies upon Mr. Andrew Dark to prove his
innocence.

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ARGUMENTS ADVANCED

ISSUE 1- WHETHER THE STATE AUTHORITIES OF GRANICUS HAS THE

PERMISSION TO EXERCISE THE JURISDICTION TO CARRY OUT THE ARREST
OF MR. ANDREW DARK ON THE CHARGES OF MONEY LAUNDERING AND
OTHER SUBSEQUENT ACTS (SEIZURE OF WALHALA ONE AND FREEZING OF
THE BANK ACCOUNTS).

[1.1] Jurisdiction under the domestic laws of Granicus.

It is humbly submitted before the Hon’ble Lordships that the domestic statute of Granicus-
Proceeds of Crimes Act, 2017 empowers Granicus to exercise its jurisdiction over the event of
arrest of Mr. Andrew Dark.

The following Sections of the Proceeds of Crimes Act, 2017 which guides the case are as
follows-

As per Section 1 (I) (2)-

(i) This Act shall extend to the-

2. to any activity relating to proceeds of crime outside the Granicus, which relates to
proceeds of crime arising from within the territory of Granicus.

This section has to be read with the schedule attached to the act which reads as follows-

b. SCHEDULE (EXTRACT)
All offences relating to bribery or corruption of a public official in Granicus.

These two sections read together find their relevance when we date it back to the time when
Ms. Aisha Drenner came into power as the Head of the State of Granicus in 2016. Since
Granicus is a Democratic country, Ms. Aisha Drenner could have come to power only when
she would have promised fair things to the public of Granicus. This being the fact Ms. Aisha
Drenner came to power on the plank of spearheading corruption, terrorism and money
laundering itself proves that corruption and money laundering were prevalent at the time

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when Ms. Aisha Drenner came into power. And to put an end to these practices the Proceeds
of Crimes Act, 2017 was also established.

On the other hand, there was opaque banking system guaranteeing secrecy to national and
international investors in Islander. Although by the time Ms. Aisha Drenner came into power, the
major industries in Islander comprising of Banking, Airline and Hotels were already being
privatized (some already into the hands of Mr. Andrew Dark who was the one taking over all the
nationalized sectors on being privatized).

Now if we go by paragraph 9 of the problem, it states that-

“These news reports indicated that a large amount of monies obtained through dubious means
inter alia by Ms. Aria Dark and her associates in the Islander Government, and other associates
linked to even the Granician Government, were being routed through Drenner Advisors into
Walhala Industries between 2012-2015, which was then being used to make investments in the
Airlines and the Hotel Industries of Islander in 2016 (which by then had been privatized).

The paragraph stated above tells it to a point that even some authorities from the Granician
Government were also involved in the process of money laundering therefore a cause of action
arises within the territory of Granicus.

Even if a miniscule part of cause of action arises within the jurisdiction of this court, a writ
petition would be maintainable before this Court, however, the cause of action has to be
understood as per the ratio laid down in the case of Alchemist Ltd. v. State Bank of Sikkim1. From
the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by this
Court, it is clear that for the purpose of deciding whether facts averred by the petitioner appellant,
would or would not constitute a part of cause of action, one has to consider whether such fact
constitutes a material, essential, or integral part of the cause of action. It is no doubt true that
even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court
would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a 'part of
cause of action', nothing less than that.

1
(2007) 11 SCC 335

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The entire logical interpretation used above is in consonance with the domestic laws of
Granicus. Since it is shown that even the Granician authorities are involved in the process of
money laundering, so Section 1(i) (2) gives the jurisdiction to the Supreme Court of Granicus
to try the case.

[1.2] Jurisdiction Under International Law.

The other International Law Principles regarding the Jurisdiction of Granician Government
over the issue are as follows-
Transboundary Crimes-
The criminal law’s classic approach of dealing with transboundary crime is to allow the
exercise of jurisdiction by a State as soon as one of the constitutive elements of the crime has
taken place in its territory. What constitutes a constitutive element of a crime is essentially a
matter of domestic law2.

Passive Personality Principle3

The passive personality principle allows states, in limited cases, to claim jurisdiction to try a
foreign national for offenses committed abroad that affect its own citizens. This principle has
been used by the United States to prosecute terrorists and even to arrest (in 1989–90) the de facto
leader of Panama, Manuel Noriega4, who was subsequently convicted by an American court of
cocaine trafficking, racketeering, and money laundering. The principle appears in a number of
conventions, including the International Convention Against the Taking of Hostages (1979), the
Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984). The protective principle, which is included in the hostages and

2
C Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of
International Criminal Law, (2009) 9 Int’l Crime L Rev 187.
3
John G McCarthy, The Passive Personality Principle and its Use in Combatting International Terrorism, Volume
13, Issue 3, Article 3 (1989)

4
UNITED STATES OF AMERICA vs Manuel Noriega, 746 F. Supp. 1506 (1990)

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aircraft-hijacking conventions and the Convention on the Safety of United Nations and
Associated Personnel (1994), can be invoked by a state in cases where an alien has committed an
act abroad deemed prejudicial to that state’s interests, as distinct from harming the interests of
nationals (the passive personality principle). Finally, the universality principle allows for the
assertion of jurisdiction in cases where the alleged crime may be prosecuted by all states (e.g.,
war crimes, crimes against the peace, crimes against humanity, slavery, and piracy)5.

In United States of America v. Fawaz Yunis6, The federal government may prosecute an airline
hijacker even if the hijacking’s only connection with the United States was the presence of
Americans on board the plane. There must be jurisdiction under both international and domestic
law in order for jurisdiction to exist in the situation of this case. International law relates to the
power of Congress to have extraterritorial application of its law; domestic law relates to its intent
to do so. International law recognizes several bases for a nation to give extraterritorial application
to its laws. One is the “universal principle.” Some acts are considered to be so heinous and
contrary to civilization that any court may assert jurisdiction. The acts that fall within this
category are mainly defined by international convention. The universal principle applies because
numerous conventions condemn hijacking and hostage taking. The “passive personality
principle” is also relevant, which applies to offenses against a nation’s citizens abroad.

Furthermore, the International Court of Justice (ICJ) noted that there is no general prohibition to
States to extend the application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory’- Lotus Case7

5
Encyclopedia Britannica, https://www.britannica.com/topic/international-law/Jurisdiction#ref795056
6
288 U.S. App D.C.129 (1991)
7
S.S. “Lotus”, France v. Turkey ICGJ 248 PCIJ (1927)

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Protective Principle

Protective principle is a rule of international law that allows a sovereign state to assert
jurisdiction over a person whose conduct outside its boundaries threatens the states security or
interferes with the operation of its government functions.

The following is an example of a case law on protective principle:

Under international law, the "protective principle" gives a country the jurisdiction to prescribe a
rule of law attaching legal consequences to conduct outside its territory that threatens its security
as a state or the operation of its governmental functions, provided the conduct is generally
recognized as a crime under the law of states that have reasonably developed legal systems.8

States may assert that they have authority over matters that constitute a threat to state security
and from which the state needs to protect itself.

Example of the protective principle

The protective principle was argued in DPP v Joyce 9 – that the actions of William Joyce (Lord
Haw-Haw), a British national, in broadcasting Nazi propaganda from Germany were harmful to
the interests of the UK. States have developed the protective principle to claim jurisdiction over
those who are not nationals but whose actions have an adverse effect on the state irrespective of
where those actions have been committed. It has been applied in cases such as espionage,
counterfeiting of currency and drug trafficking.

In the case of AG of the Government of Israel v. Eichmann,10 the principle of protective

jurisdiction was upheld by the Israeli Supreme Court and held that a country whose “vital
interests” and ultimately its existence are threatened, has a right to assume jurisdiction to try the

8
United States v. Zehe, 601 F. Supp. 196 D. Mass. (1985)
9
[1946] AC 347,American Journal on International Law, Volume 40, Issue 3, pp. 663- 679 (2017)

10
American Journal of International Law, Volume 56, Issue 3, pp. 805-845 (2017)

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offenders. Furthermore, the Court in the case of United States v. Rodriguez11 stated that the
United States can widen the scope of its criminal jurisdiction by means of the principles of
international jurisdiction, including inter alia, the Protective principle.
All these principles of International law when put together gives the State of Granicus the
authority to arrest Mr. Andrew Dark in relation to the offence of money laundering which does
have an impact on the State of Granicus.

[1.3] The Subsequent Acts Of Seizure Of Walhala One And Freezing Of Accounts Was
Made As It Reated To The Proceeds Of Crime Originating From Money Laundering.

The authority to seize the property related to the Proceeds of Crime and to freeze the accounts of
Ms. Aria Dark has been granted under the Proceeds of Crime Act, 2017.

Sections 3 and 4 of the Proceeds of Crimes Act, 2017 can be relied upon-

Section 3: Power to attach – Any officer of the Directorate of Investigation may seize/ attach
any property, which he has reason to believe on the basis of material in his possession, that
is, or emanates from, proceeds of crime.

Section 4: The Directorate of Investigation shall have the power to investigate into any
activity relating to proceeds of crime and the offence of money laundering.

Since the Granician authorities had a reason to believe about the involvement of Mr. Andrew
Dark into the offence of money laundering, whatever property derived from the offence
could be confiscated or frozen as it belonged to the proceeds of crime originating from the
offence of money laundering.
The Hon'ble Supreme Court, in the case of M. P. Industries Ltd. v. IPO,12 while dealing with
the powers under Section 34(1) of the Income Tax, 1922, which required the officer to
have “reason to believe”, has held that the expression 'reason to believe' in Section 3 does not
mean purely subjective satisfaction on the part of the Income Tax Officer and that the belief

11
575 U.S. (2015)
12
[(1970) 2 SCC 32]

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must be held in good faith and it cannot be merely a pretence. It was further held by the
Supreme Court that it is open to the Court to examine whether the reasons for the believe
have a rational connection or an element bearing to the formation of the belief and are not
extraneous or irrelevant to the purpose of the Section.
In the case of Sarosh Munir khan13, it was held that- "An order confirming the provisional
attachment can be passed only on the adjudicating authority being satisfied, on considering
the material on record including material or evidence furnished in response to the notice
issued under Section 8(1), the reply furnished in response thereto, and taking all and other
relevant material into consideration, to record a finding that the property or so much of it, is
involved in money laundering.
The arrest of Mr. Andrew Dark is made as part of a larger event. The arrest is no individual
event. The chain goes on in the way- coming to power as Head of a State of Aisha Drenner
on agenda on spearheading corruption and money laundering in the state of Granicus. Then
making a statute to combat Money laundering activities and also the reason to believe about
the involvement of Mr. Andrew Dark in the event of money laundering. Hence, under
Section 3 and 4 of the Proceeds of Crime Act, the property has been seized.
Freeezing of bank accounts- The bank accounts has been frozen temporarily by a Quia Timet
order.

'Quia timet' is a latin phrase meaning 'because he fears or apprehends'. 14 There has been no
permanent freezing of bank accounts. It has been apprehended that if the accounts are not frozen
at once then there can be use of proceeds of crime arising out of money laundering. Also the
international convention- United Nations Convention against Transnational Organized Crimes15
favours temporary freezing of accounts in case of an offence of money laundering.

Hence it is submitted before the Hon’ble Supreme Court of Granicus that the arrest of Mr.
Andrew Dark and the subsequent events of seizure of aircraft and freezing of bank accounts is
justified both under the Municipal Law of Granicus and the International Law.

13
Sarosh Munir Khan Vs. The Deputy Director, 534/MUM/2013.

14
Black Law’s Dictionary

15
Art. 2(f), United Nations Convention Against Transnational Organised Crime.

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ISSUE 2. WHETHER THE ACTIONS OF GRANICUS STATE AUTHORITIES

CONSTITUTE VIOLATION OF DIPLOMATIC IMMUNITY OF ANDREW DARK:

Entitlement of Diplomatic Immunity

Diplomatic Immunity is a principle of International Law by which representatives of foreign

countries are not subject to the jurisdiction of local courts and other authorities for the acts
committed by them under both official and to a large extent, personal capacity. Since Ms Dark
(Head of Islander) visited Granicus to lodge Diplomatic protest, her visit is officially termed as a
Special Mission. Diplomatic Immunity from criminal jurisdiction for such missions is entitled to
“Diplomatic Agent”, “Family members of Diplomatic Staff” and “Members of the administrative
and technical staff”16.. It is contended that Andrew Dark cannot claim Diplomatic Immunity
under the category of “Family member of Diplomatic staff” since immunity is extended to
immediate family members. An immediate family member is defined as a parent; sibling; child
by blood, adoption, or marriage; spouse; grandparent or grandchild. Hence, Andrew Dark, being
the nephew of Aria Dark, is not an immediate family member. According to Article 8 of Vienna
Convention on Diplomatic Relations 1969, “The sending State may freely appoint the
members of the special mission after having given to the receiving State all necessary
information concerning the size and composition of the special mission, and in particular the
names and designations of the persons it intends to appoint. The receiving State may decline to
accept a special mission of a size that is not considered by it to be reasonable, having regard to
circumstances and conditions in the receiving State and to the needs of the particular mission. It
may also, without giving reasons, decline to accept any person as a member of the special
mission. It is also to be noted that the Sending State (Islander) didn’t notify the receiving State
(Granicus) about the capacity of Mr Andrew Dark as “official advisor to Ms Aria Dark” anytime
before his arrest. Mr. Andrew Dark had been accompanying her aunt as her nephew and in the
absence of any information about the capacity in which Mr. Andrew Dark visited Granicus, the
actions of State authorities to take any action against Mr. Andrew Dark are not precluded by his
immunity. Therefore, Mr. Andrew Dark is not entitled the right to claim immunity under any of
the categories. It is to be remembered that Diplomatic immunity is not established to serve a
license for persons to violate the law and avoid liability for their actions. As stated in both
Vienna

17
16
Art. 31, 36, 39, Vienna Convention on Diplomatic Relations, 1969

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Convention and Convention on Special Relations that “the purpose of such privileges and
immunities is not to benefit individuals but to ensure the efficient performance of the functions
of diplomatic missions/special missions as representing States”. Both Islander and Granicus are
signatories to Vienna Convention of Diplomatic Relations and these diplomatic rules of
engagement are not just arcane conventions but a standard for the absolute conduct between
States. In the view of this, it is submitted that the actions of Granicus State authorities are in
compliance with international obligations and no right has been violated.

Hence, the contention of the applicant that Andrew Dark being the “official adviser to Ms Aria
Dark” is entitled to have Diplomatic immunity is not maintainable for the Immunity of Andrew
Dark can only be violated if it has been previously established that Andrew Dark enjoys
Diplomatic Status.

Denial of Diplomatic Immunity

In present case, both Granicus and Islander are signatories to the United Nations Convention
against Transnational Organized Crime and the purpose of this Convention is to promote co-
operation in preventing and combating transnational organized crime more effectively. Hence, it
is submitted that Granicus has complied with its obligation under Article 6 of the convention to
criminalize the laundering of the proceeds of crime and provide for punishment for the offence
of money laundering domestically. As also highlighted in Article 15 of the convention to “adopt
such measures as may be necessary to establish its jurisdiction over the offences established in
accordance (with the Convention)”. Therefore, by virtue of Article 6 and Article 15 of the
convention, Granicus can exercise its Jurisdiction and can take any such measures to combat the
offense of Money Laundering. As observed in the case of Equatorial Guinea v France17
“Immunity is not a question of jurisdiction, but of the exercise of that jurisdiction.” Diplomatic
Immunity does not exempt diplomatic officers from the obligation of conforming with national
and local laws. The Italian Supreme Court held in the case of Ferrini v. Federal Republic of
Germany18 that “while customary law prescribes immunity from jurisdiction of a foreign state
for acts which are the expression of its sovereign authority, such immunity should be lifted when
such acts amount to international crimes.” Also observed in the case of U.S. Vs. Devyani

17
ICGJ 513 (ICJ 2016)
18
ILDC 19 (IT 2004)

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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

Khobragade, where Devyani Khobragade, the then Deputy Consul General of the Consulate
General of India in New York city, was charged by U.S. authorities with committing visa fraud
and Department of State waived her Diplomatic Immunity based on determination of appropriate
prosecuting authority. It is also to be noted that Diplomatic immunity from criminal jurisdiction
is entitled for the acts done in official capacity, not for the act done in personal capacity. The
Honorable ICJ in Democratic Republic of the Congo v. Belgium19 observed: While jurisdictional
immunity was procedural in nature, criminal responsibility was a question of substantive law.
Jurisdictional immunity might well bar prosecution for a certain period or for certain offences; it
could not exonerate the person to whom it applied from all criminal responsibility. Hence
Diplomatic Immunity is not an absolute right and can be denied. The same was observed in the
case of Dominique Strauss-Kahn who was prosecuted for the charge of sexual assault in 2011
and denied Diplomatic Immunity with a view that it was a tactic designed to delay the
proceedings. General Augusto Pinochet, who ruled Chile for decades, also discovered that his
claim for diplomatic immunity was futile when he was arrested in London in 1998; their
Lordships held that Pinochet did not enjoy immunity from criminal proceedings in respect of
allegations of torture.

It is therefore submitted actions of Granician State authorities are justified in the light of the fact
that the immunity of Andrew Dark was non-existent in first place and such immunity, if entitled,
can be denied in the name of justice.

ISSUE 3. WHETHER THE ACCUSATION OF MALA FIDES ON PART OF

GRANICIAN GOVERNMENT AUTHORITIES VALID?

[3.1] Actions Of Granician Government Authorities Are A Part Of Its Sovereign

Functions.

The actions of Directorate of Investigation to prosecute and arrest Mr. Dark are in concurrence
with their official duties conferred by the State of Granicus.

19
[2002] ICJ 1

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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

According to Section 1 (v) of the Proceeds of Crime Act, 2017-

The “Directorate of Investigation” is the agency created under the present statute headed by
Director of investigation, who shall report of Minister of Finance of Granicus, and has the power
to investigate into and to prosecute offences under the present Act, and to exercise such further
powers as provided under the Act.

Also the arrest has been made with a view to punish illegal legitimization of money by Mr. Dark
because such actions pose serious threat to the economy and well being of the citizens of
Granicus. The contention of prosecution that the arrest has been made with an ulterior motive to
take over the control of Walhala Industries through Drenner Advisors, the originating source of
laundered money, itself establishes the link between both the companies, the very basis on which
arrest has been made. Therefore, the contention itself establishes that money has been laundered
via Walhala Industries

[3.2] Burden Of Proof

The accusation of mala fides on part of Granician Government authorities has been raised by
prosecution, hence, the burden of proof is on them to prove as section 101of Evidence Act, 1872.

It is seen in most of the common law countries that the burden of proof to prove innocence in the
cases of Money Laundering falls upon the one accused of the offence. So here in this case, the
burden of proof lies upon Mr. Andrew Dark to prove his innocence.

For instance in the context of India, the PMLA20 is a special act which provides for reverse
burden of proof. A person who is in possession of proceeds of crime is presumed to have
knowledge about the sources through which the money has been acquired and the process
through which it has been legitimized. As seen in the case of B. Rama Raju21, Section 24 of
PMLA shifts the burden of proving that proceeds of crime are untainted property onto
person(s) accused of having committed the offence U/S 3." Further, in para 126, " In
response to a notice issued U/S 8(1) and qua the legislative prescription in section 24 of
the

20
Prevention of Money Laundering Act.

21
B. Rama Raju Vs.UOI, (2012)1MLJ419.
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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

Act the person accused of having committed the offense under section 3 must show with
supporting evidence and material that he has the requisite means by way of income, earning
or assets, out of which or by means of which he has acquired the property alleged to be
proceeds of crime. Only on such showing would the accused be able to rebut the statutorily
enjoined presumption that the alleged proceeds of crime are untainted property."

The reason of shifting burden of proof has also been justified by section 106 of the Evidence
Act.which deals with the burden of proving fact especially within knowledge

In the case of Prithipal Sing Vs. State of Punjab,22 it has also been held that:
“Section 106 of the Evidence Act, 1872 is designed to meet certain exceptional cases, in which, it
would be impossible for the prosecution to establish certain facts which are particularly within
the knowledge of the accused.”
In the case of State of Madhya Pradesh Vs. Awadh Keshore Gupta,23 it has been observed to the
effect:
“The expression “known sources of income” has reference to sources known to the prosecution
after thorough investigation of the case. It is not, and cannot be contended that “known sources of
income” means sources known to the accused. The prosecution cannot, in the very nature of
things, be expected to know the affairs of an accused person. Those will be matters “especially
within the knowledge” of the accused, within the meaning of section 106 of the Indian Evidence
Act, 1872.”
In the case of Murlidhar Vs. the State of Rajasthan,24 it has been held that:
“Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would
be impossible, or at any rate disproportionately difficult for the prosecution to establish facts
which are ‘especially’ within the knowledge of the accused and which he could prove without
difficulty or inconvenience.”
In the case of State of WB Vs. Mir Mohammad Omar,25 it has been held that:

22
(2012) SCC

23
AIR 2004(SC)
24
AIR 2005 SC
25
AIR 2000 SC 2988

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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

“The section is not intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the Section would apply to cases where the prosecution
has succeeded in proving facts from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which drive the court to draw a different inference.”

It is added that in the world of internet and wire transfers, it is very difficult to have a trail of the
money or property constituting the proceeds of crime or value of such property.
Therefore, it is the accused that has to prove his innocence in the present case.
Also, the contention of prosecution questioning the intention of State Authorities in prosecuting
Andrew Dark doesn’t become a ground for denying the existence of such power.
It was said in State of Rajasthan v. Union of India,26 "it must be remembered that merely
because power may sometimes be abused, it is no ground for denying the existence of power.
The wisdom of man has not yet been able to conceive of a Government with power sufficient to
answer all its legitimate needs and at the same time incapable of mischief.

Also, as the arrest of Andrew Dark is a part of larger event to combat the offense of Money
Laundering, the allegation that no action can be taken against Walhala without prior action
against Drenner is futile. The arrest is no individual event as explained above and authorities
involved in the offence of money laundering on the part of Granicus are also being questioned
which altogether is a separate trail.

Hence it is submitted that there can be no Mala fides since Granicus is a democratic country, it
has separate organs of government consisting of Legislature, Executive and Judiciary. The role
of the three organs is independent of each other. The actions of the Legislative organ is separate
from Judiciary.

26
[1977] 3 SCC 592

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 K.K. LUTHRA MEMORIAL MOOT COURT, 2019

PRAYER

Wherefore In The Light Of Issues Raised, Arguments Advanced And Authorities Cited, It Is
Humbly Prayed That This Hon'ble Court May Be Pleased,

1. TO DECLARE, that, Granicus has the jurisdiction to prosecute Mr. Andrew Dark for
committing the crime of money laundering,
2. TO DECLARE, Walhala One as proceeds of Crime, and as such liable to be attached as
proceeds of crime.

And Pass Any Other Order, Direction, Or Relief That This Hon‟Ble Court May Deem Fit In The
Interests Of Justice, Equity And Good Conscience.

All of which is humbly prayed,

URN - 1561

Counsels for the Respondents

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