National Crime Agency v Javanshir Feyziyev & Ors

May 2023, the National Crime Agency (“NCA”), applies for a Property Freezing Order

(“PFO”), in relation to three named respondents, pursuant to section 245A of the Proceeds of Crime Act 2002 (“POCA”). A PFO prohibits any person to whom the
order applies from in any way dealing with the property specified in the order, save to the extent that there are any exclusions.

of crime in Parts 5 and 8 of POCA and the crime reduction function under section 1 of the Crime and Courts Act 2013, in order to preserve the assets pending the completion of its ongoing civil recovery investigation.

Kingdom by virtue of the Tier One investor visa issued to his wife.

who lives in the United Kingdom along with the couple's children.

registered legal owner of 20 of the properties that are the subject of this application. Information indicates that these properties are held on trust for the first respondent or in some instances, the first and second respondents jointly.

two further leasehold properties in Whistler Square, London, in relation to which the first respondent is the registered owner, items 21 and 22 on the list I have been

provided with; (iii) the balance of an account held in the name of the first respondent at the LGT Bank Liechtenstein; and (iv) rental income from the 22 properties.

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Mr Coles, dated 19 June 2023. I will refer to these documents as Coles 1 and Coles 2. Mr Coles has conduct of the relevant civil recovery investigation on behalf of the NCA. There is also extensive exhibited documentation to Coles 1.

provided by the NCA. In the event, there was insufficient time, once submissions had concluded, for me to consider the matters raised orally and for me to give judgment.

I therefore adjourned the hearing for judgment to be given this morning, that is to say Friday, 23 June 2023. At my suggestion, counsel has helpfully provided a revised draft order in the interim, to take account of certain points that I raised during the hearing on Wednesday.

Application made without notice

right of the enforcement authority to obtain a recovery order in respect of any property". The present application is made without notice.

is likely to give rise to a significant risk of dissipation of the property in question.

grounds for believing that the first respondent has been involved in dishonest conduct, including fraud and money laundering. It is believed that the first respondent is principally resident outside the jurisdiction, in Azerbaijan. The first and second respondents are also foreign, Politically Exposed Persons (“PEPs”), who have strong connections overseas. As I have already indicated, the property under investigation is
of very considerable value and is currently unrestrained by any court order and, save
for property 21, is unencumbered by any mortgage.

aftermath to the Account Forfeiture proceedings ... [I will come on to refer to these in more detail] ... Respondent One instructed his investment manager to remit his remaining assets to an account in Turkey. He has also instructed his agents to remit some of the rental income from five of the properties to a bank account in Azerbaijan".

NCA is investigating and now seeking to restrain the assets that I have referred to.

of these concerns and accept that the circumstances come within the criterion I have referred to in section 245A(3).

itself responsible for any unlawful conduct or other wrongdoing. In essence, it is said that giving the third respondent notice of the application could prejudice enforcement because there is some ambiguity or uncertainty as to whether or not the third

respondent would regard the situation as coming within section 333A of POCA, which makes it a criminal offence for a person to disclose certain matters relating to POCA investigations. The NCA's position is that there is a risk the third respondent could

form the view that this section is not engaged by disclosing details of the PFO application, as there is no investigation into a money laundering offence under Part 7 of the Act. If the third respondent did not regard the situation as coming within

section 333A, it is likely that they would wish to disclose matters to the first and

second respondent, not least in order to take instructions and to be able to respond, as the third respondent will not have direct knowledge of the wrongdoing alleged.

properly made without notice in relation to the third respondent as well.

Hearing in private

hearing on Wednesday and the giving of this judgment to be conducted in private. I
am conscious that the "presumptive starting point" is that proceedings should be in public, see DPP v Briedis [2021] EWHC 3155 (Admin) at paragraph 34 and also,

of course, that any incursion upon the fundamental principle of open justice must only be to the extent that is strictly necessary.

administration of justice. Here, in light of the material relied upon by the NCA that

I will come on to refer to, I am satisfied that limb (a) is established, namely that publicity would defeat the object of this without notice hearing. This follows from the fact that I am satisfied that in the circumstances, it was proper for the application to be made without notice, as a public hearing would substantially undermine that without notice application, given the significant risk of dissipation of the property in question that I have already identified. I am also satisfied in the circumstances at this stage, that limb (e) also applies, as it is the hearing of an application made without notice and it would be unjust to the respondents for there to be a public hearing, given the nature of the conduct that is alleged in relation to the first and second respondents, which they have not had an opportunity to respond to at this stage. I am also satisfied that for

these reasons, it is necessary to sit in private to secure the proper administration of justice.

to be listed in an anonymised way on the court listings and for the publication of the court's direction on Wednesday that the court sit in private to be deferred, as I will go on to indicate.

which open justice is interfered with, I take into account the fact that these incursions are only intended to operate for a limited period, so as to enable the court's order to be

served on the respondents before they become aware of these proceedings. The risk of dissipation will then be substantively ameliorated after service.

for publication of the court's judgment and order in an unredacted form 14 days after service of the proceedings on them have taken place, I will also include provision in the order for that period to be extended, should the respondents make an application to restrict publication and/or seek anonymity, until that application has been considered and determined by the court.

The legal framework

Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings).

A property freezing order is an order that—

specifies or describes the property to which it applies, and

subject to any exclusions (see section 245C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property.

An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.

The court may make a property freezing order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met.

The first condition is that there is a good arguable case—

that the property to which the application for the order relates is or includes recoverable property, and

that, if any of it is not recoverable property, it is associated property.

The second condition is that, if—

the property to which the application for the order relates includes property alleged to be associated property, and

the enforcement authority has not established the identity of the person who holds it, the authority has taken all reasonable steps to do so."

section 245A(1). The NCA is an enforcement authority for these purposes, see

section 316(1). The application must be made in the Administrative Court to a High Court Judge, in accordance with CPR Part 23, paragraph 2.1 and also paragraph 5.1 of the Practice Direction - Civil Recovery Proceedings (“PDCRP”).

property in respect of which the PFO is sought, including an estimate of the value of

the property, whether the property is alleged to be recoverable or associated property, the facts relied upon in support of that allegation and in the case of associated property, who is believed to hold the property, see paragraphs 4 - 5.5 of the PDCRP.

claim or apply for its continuation before the end of the period, see paragraph 5A of the PDCRP.

High Court against any person who the authority thinks holds recoverable property, see

section 243.

a PFO if it is satisfied:

"There is a good arguable case that the property to which the application for the order relates is or includes recoverable property and ... that if any of it is not recoverable property, it is associated property".

already referred to) at paragraph 8, this was described as a “relatively low” threshold.

In The Niedersachsen [1984] 1 All ER 398, a freezing order case, Mustill J held at 404:

"... the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument and yet not necessarily one which the judge believes to have a better than 50% chance of success".

where such property has been disposed of and it can be followed into the hands of another, see section 304(1) of POCA; (ii) property which "represents" property obtained through unlawful conduct, including where such property has been disposed of and it can be followed into the hands of another, see section 305(1); and (iii) profits accruing from recoverable property, see section 307(1).

"Property is all property, wherever situated and includes –

money,

all forms of property, real or personal, heritable or movable,

things in action, and other intangible or incorporeal property."

not make certain orders, including a PFO, "unless there is or has been a connection ... between the case and the relevant parts of the United Kingdom". Schedule 7A
specifies a number of “connections” for these purposes. The relevant part of Schedule 7A for present purposes are:

There has been a connection where the property in question has been in the
relevant part of the United Kingdom but only if it was recoverable property in relation to the unlawful conduct for some or all of the time it was there.

There is or has been a connection where a person described in subparagraph 2 – (a) is linked to the relevant part of the United Kingdom, (b) was linked to that part of the United Kingdom at a time when the unlawful conduct or some of the unlawful conduct was taking place or, (c) has been linked to that part of the United Kingdom at any time since that conduct took place."

occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under

the criminal law of that part: section 241(4). Where conduct occurs in a country
outside of the United Kingdom, it is unlawful conduct, if it is unlawful under the criminal law in that country and, if it occurred in a part of the United Kingdom, it would be unlawful under the criminal law of that part, see section 241(2).

section 242(1).

"The right to recover property does not depend on the commission of unlawful conduct by the current holder, all that is required is that the property itself be tainted because it or other property which it represents was obtained by unlawful conduct."

recoverable, see ARA v Jackson [2007] 2553 at paragraph 116, where it was said:

"It is ... the whole picture painted by the totality of the evidence which has to be balanced ... I do not consider it essential that the court consider each property transaction on an item-by-item basis".

relied on is money laundering, see SOCA v Namli [2013] EWHC 1200 at

paragraph 47. For example, the court is entitled to draw inferences from the absence of identifiable lawful income to warrant a lifestyle, the lack of documents, the telling of lies and the way in which property has been handled. And in that regard I am referred
to the following authorities: Olupitan v ARA [2008] EWHC Civ 104 at paragraph 16, SOCA v Gale [2009] EWHC 1015 at paragraph 118 and Muneka v Commissioners of Custom and Excise [2005] EWHC 495 (Admin) at paragraphs 11 and 12. As was said
in Namli at paragraph 49:

"Putting this in this crude terms, ... if a transaction looks like money laundering and has not been satisfactorily explained by a defendant who ought to be in a position to

explain it if there is an innocent explanation, that is probably what it is".

recoverable property; (b) any other interest in the property in which the recoverable property subsists; (c) if the recoverable property is a tenancy in common, the tenancy

of the other tenant; and (d) if recoverable property is part of a larger property, but not a separate part, the remainder of that property.

consider amongst other things, whether the making of a PFO will interfere with rights under the European Convention on Human Rights (“ECHR”), including Article 8, ECHR, and Article 1 of Protocol 1 and if so, whether such an interference is justified in the circumstances.

identified in Nuttall v NCA [2016] EWHC 1911 (Admin) at paragraph 19:

"In my view, a judge asked to grant a PFO will consider the general background and concerns raised by the NCA. What is needed is a good arguable case that knowledge

of the investigation and the investigation of assets could lead to dissipation so as to frustrate any recovery order. If the judge considers that the general background does

not show a good arguable case that there is a risk of dissipation of assets or any particular assets, he will not be likely to grant the order. But it has never been considered, nor does section 2458A require that a risk of dissipation had to be proved."

dealing with property, including for the purposes of enabling a person to meet his or

her reasonable living expenses, legal expenses and/or to carry on any trade or business. Paragraph 5B.1 of the PDCRP provides that, where the court makes a PFO without notice, it will "normally" make an "initial exclusion" from the order which will "not normally exceed £3,000" for the purposes of enabling the respondent to meet their reasonable legal costs so that they may take advice, prepare a statement of assets and apply for the order to be varied or set aside. However, paragraph 7A.4 of the PDCRP provides that the court will not make an exclusion, including an initial exclusion, if it is satisfied the person has property to which the PFO does not apply from which he or she may meet those costs.

Formal requirements

PDCRP have been complied with in this instance.

The threshold test

referred to by Mr Sutcliffe in his oral submissions to me and considered counsel’s

skeleton argument. I have been assisted too by Annex 1 to the skeleton argument, which sets out a detailed summary of the tracing exercise that has been undertaken in relation to each of the properties and is, in effect, a distillation of Mr Coles' material.

the properties in this oral judgment at this stage of the proceedings. Further, as I have already referred to, the case law indicates that I should evaluate the position on a global basis at this stage. In the circumstances I will provide a brief summary of some of the significant aspects that emerge and I will also identify some overarching points, but

I emphasise that I have considered the material as a whole.

importation and distribution of Western pharmaceutical products. As detailed in Coles
1, the first respondent also has links to Avroned Seychelles, a company incorporated in the Republic of Seychelles in 2005; and to what he terms the Avromed “nominee

companies” which are described at paragraphs 2.18 - 2.23 of Coles 1.

are the subject of this application are or include property which is or represents property obtained through unlawful conduct, including corruption and fraud in Azerbaijan and money laundering, forgery and the creation of false instruments in Estonia and Latvia, false accounting and/or obtaining services by deception on the transferring banks.

relation to the banks in Estonia and Latvia and money laundering.

a money laundering mechanism in Estonia and Latvia which has been dubbed the

Azerbaijani Laundromat with the provision of false information to the transferring banks, which it had said had lax controls.

money from Azerbaijan which were routed through the Danske Bank in Estonia and the ABLV Bank in Latvia. Money was moved in a series of transactions between various shell companies and was purportedly justified by fraudulent or forged documentation and by the use of false payment narratives.

back to an Azerbaijan company called Baktelekom (spelt with a “k”, in distinction from a reputable company of a similar name).

In turn, funds held by Hilux and Polux were received by the first respondent on
a number of occasions.

Magistrates' Court, where an Account Forfeiture Order was made totalling approximately £5.6 million in respect of bank accounts held by the second respondent, by her older son and by a nephew of the first respondent, the District Judge was satisfied to the civil standard of proof that the sale of steel piping narrative was a false one and that the monies related to money laundering.

respondent for £18,400,000 on 27 January 2020 in the case of property 21 and for £18,100,000 on 20 December 2019 in the case of property 22. Tracing of the monies used to fund the reservation fees for these properties indicates that a substantial payment was made from a Danske Bank account held by Polux to the Avromed Seychelles account and then to in turn to the first respondent's ABLV account.

frequency of the movement of money in relation to the Polux bank account. Similar table shows very substantial transfers, often close together in time, in relation to Baktelekom, Hilux and Avromed.

at paragraphs 42 and 43 of counsel's Annex 1, there is a good arguable case that the deposits, which were paid from the first respondent's ABLV account, were in turn funded by payments that can be linked back via Avromed Seychelles to Hilux and to Baktelekom.

Annex 1, there is also a good arguable case that the completion monies for the purchases were funded by sums that were falsely described as loans and by the provision of security over assets that were the proceeds of unlawful activities of the kind I have described.

June 2017 of monies totalling 8.1 million euros to the first respondent's ABLV EUR account from his nephew, Elman Javanshir's ABLV account. Ostensibly the payments were for the sale of the first respondent's shareholding in Avromed. However, for the reasons identified by Mr Coles, I accept there is a good arguable case that the alleged shares sale was used as a means to extract corrupt funds out of Azerbaijan. In turn
these funds are said to have been used to complete the purchases of properties 8, 11

and 17.

said, to the use of “Exchange Houses” as a means to pay suppliers because of restrictions on accessing hard currency in Azerbaijan, is simply not a credible one.

transfers. These concerned 12 transfers of money that were made in a single week

in March 2016 into the Avromed Seychelles account from 12 different sources. The

amounts involved totalled US dollars 3,333,623 and in turn $3,500,000 was transferred on 17 March 2016 to the first respondents ABLV bank account and this was used in relation to completion monies for properties 4 - 7.

first respondent's ABLV account for the period August 2010 to May 2018. He

observed that they showed numerous very substantial credits from suspect entities including Avromed and also a company known as Brightmax Export Limited. Further, many of these payments are simply described by the opaque designation "account replenishment".

includes recoverable property, given their transactional history. As I have indicated,

I do not propose to detail this in this relation to each of the properties, but I am satisfied by his analysis.

drawn.

and valuable property portfolio over a short period of time.

real property was acquired during or after the reported operation of the
Azerbaijani Laundromat, which is said to have operated between August 2012
and December 2014.

Magistrates' Court proceedings that I have referred to. Mr Coles says in Coles 1 at paragraph 3.30:

"The funds that were forfeited were held by relatives of Respondent One, his wife (Respondent Two), Orkhan Javanshir (the couple's eldest son), and Elman Javanshir (a nephew of Respondent One) ... Those individuals had received the forfeited funds either from Respondent One or from bank accounts held by a Avromed entity".

has, in overall summary, been acquired with monies that can be traced back to Baktelekom, Hilux, Polux, Brightmax and/or Avromed Seychelles. Further, the Liechtenstein account has been credited with sums that can be traced back to Hilux, Brightmax and Avromed Seychelles. In turn, these are all companies which are believed to have played a prominent role in the Azerbaijani Laundromat.

that the first respondent has made use of a huge number of shell companies with an opaque ownership and management structure and located in jurisdictions where the filing of corporate accounts is not required. The use of those companies and their

corporate directors and partners have created layers of anonymity masking their true owners’ identity. Many of these companies have no identifiable footprint despite the large amounts of money involved. As I have already noted, it is said with some force
in Coles 1 that the explanation for using these entities as Exchange Houses, as the first respondent called them in the defamation proceedings, is not credible for the reasons identified in Coles 1, in particular at paragraphs 3.100 - 3.102.

UAE and Belize. The provision of corporate bank accounts linked to the shell companies enabled funds to circulate in a manner which hid their true origin and allowed the funds to be remitted to "safe jurisdictions" for introduction into the United Kingdom. In this regard see in particular Coles 1 at paragraph 3.26.

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been subject to public allegations and findings of money laundering since the Azerbaijani Laundromat was first reported in 2017.

of examples that demonstrate the various unlawful means that have been used in

an attempt to legitimise these transfers, by, for example, using false descriptions of services for which it is said that the monies represent payment for, also by forging and creating false instruments such as alleged contracts, loan agreements and payment instructions. In the AFO proceedings, District Judge Zani said:

"I am satisfied that there is overwhelming evidence that the ‘invoices’ and ‘contracts’ purporting to support legitimate (and very substantial) business transactions between Baktelekom, Hilux and Polux were entirely fictitious and were produced in order to deceive the bank into opening accounts and allowing the later flow of very significant sums into and out of their accounts so as to mask the underlying money laundering activities of those orchestrating the accounts."

that I have already referred to. The payment descriptions had a number of unusual features, including, the repeated use of the description "account replenishment". Another common description is "trade balance payment". The same spelling mistakes are made in references for transfers from more than one company. Also there are payment references with invoice dates on the same date, or the day before, the payment in question, which, as Mr Coles says, is surprisingly expeditious for a substantial payment in an arm's length commercial transaction.

Dual criminality

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unlawful conduct if it is unlawful not only under the criminal law of the United Kingdom, had it occurred here, but unlawful under the law of the country where it did occur. Mr Sutcliffe accepts that I do not have direct evidence at this stage of the
relevant foreign criminal law. He invites me to infer for the purposes of this

application that the conduct I have referred to would plainly be unlawful in Azerbaijan, Estonia and Latvia. I am willing to draw that inference at this stage.

Property 23

23, the Liechtenstein account. I accept Mr Sutcliffe's submission that there is a sufficient link to England and Wales based on the first part of paragraph 5 of

schedule 7A of POCA (which I have already read out) by virtue of the fact that the first respondent has resided and continues to reside for part of the year with the second respondent in London. This was something that the first respondent himself stated in
the witness statement that he made for the defamation proceedings.

Associated property

of Eurasia OJSC. Accordingly there are no instances where the NCA has not
established the identity of the holder of associated property and accordingly the condition prescribed by section 245A(6), which I referred to earlier, does not arise in this instance.

The duty of disclosure

the matters that have been raised into account.

articles published in September 2017 concerning the Azerbaijani Laundromat. The proceedings were the subject of a confidential settlement and the case did not proceed to trial. The public order recorded the first respondent's denials of wrongdoing which are set out in his witness statement, but the articles remain accessible and thus their removal does not appear to have been part of an agreement.

points - from the first respondent perspective - made in that witness statement, including: his denial of any wrongdoing; his denial of any connection to the

Azerbaijani ruling class; his description of having a more limited role in relation to Avromed than had been suggested; and that he sought to provide an explanation for the source of certain monies, for example he said he received very substantial dividends from his Avromed shares during the period 2006 - 2016 in the order of £22 million. However, I understand that no supporting documentation was provided in that regard and since that time the detailed enquiries described by Mr Cole have undermined that explanation.

were undertaken by reputable solicitors. Whilst that is undoubtedly the case, it is very likely they were not in possession of the nature and level of information that Mr Coles has produced.

he nor other family members give evidence or submitted witness statements in those proceedings. I have seen a report prepared by Oculus Financial Intelligence, which the District Judge found was prepared on the first respondent's instructions. Quite

properly, Mr Sutcliffe also drew my attention to points made in this report by or on behalf of the first respondent. In addition to matters that I have already mentioned, this included that it was said there was an unconscious bias operating in relation to the first respondent as an Azerbaijani; he denied any connection to Baktelekom; and he sought

to explain the "account replenishment" designation as a description selected and applied by the bank. I have borne all these points in mind.

to the outcome of the AFO proceedings. In short, whilst findings were made that

I have already referred to, none of the money flows considered in Coles 1 overlap with the property that was the subject of District Judge Zani's findings.

to the District Judge's findings at paragraph 478 of his judgment that the first

respondent had received payments totalling US dollars 2,800,000 from Avromed's ABLV bank account on 22 August and 3 November 2012, but it had not been possible to trace back where these payments originated from. Mr Sutcliffe explained, and

I accept, that this tracing back process has now been possible and indeed the figure in question corrected, as set out by Mr Coles and summarised at paragraph 13 of counsel's Annex 1. Accordingly, understood in this way, the position advanced in these proceedings does not undermine any findings made by the District Judge.

The court's discretion

repeating them. For these reasons, I am satisfied that in the circumstances such interference as there is with the respondents' Article 8 and/or Article 1 Protocol 1 rights is lawful because it pursues a legitimate aim, namely the prevention of crime, and is proportionate and strikes a fair balance. As I have found, there is a good arguable case that the property is or represents property which has been obtained through unlawful conduct and I accept that the NCA has considered whether alternative methods are available, but has concluded that the necessary objectives cannot be achieved by less

intrusive means. I bear in mind that the respondents will have, under the terms of the order, the right to apply to vary or discharge the PFO if so advised. I also bear in mind that there is a significant risk of dissipation for the reasons that I have already identified.

The terms of the order

and I will work from that, although it is to be tweaked slightly further and counsel has kindly agreed to provide a further copy after today's hearing. But I can deal with all
the substantive points at this stage.

person who knows of the order of the consequences of non-compliance.

prohibition is limited to the assets which are the subject of the application.

requiring: (i) the respondents to serve each month bank statements showing any mortgage payments in respect of the property to the respondents; (ii) to serve within 14 days a witness statement listing the names of all occupiers and/or tenants of the properties as well as copies of current tenancy agreements and the details of any management company / estate agents instructed in the letting of the properties; (iii) the third respondent to provide details of the current Persons with Significant Control of

the company; and (iv) the respondents to serve a witness statement notifying the NCA in the event of any change of circumstances. I am satisfied that the court has power under CPR 25.1(1)(g) and/or the inherent power under section 37 of the Senior Courts Act 1981 to make such orders and that it is appropriate to do so as regards ensuring the effectiveness of the PFO.

may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases to which it appears to the court to be just and convenient to do so". I note that in AJ Bekhor & Company v Bilton [1981] 1 QB 923 at 942 it was said:

"Where the power exists to grant the remedy, there must also be inherent in that power the power to make ancillary orders to make that remedy effective."

provisions for any person affected by the PFO to apply to vary or discharge it.

provision should be made for alternative service given the means of service that was envisaged. I was satisfied that the conditions for alternative service in CPR 6.27 are made out, that there is good reason for doing so in the circumstances; and I am satisfied

that service by these means is likely to bring the matter to the first and respondents' attention. In short, the order as now tweaked since Wednesday, provides for alternative service on the first respondent by delivering copies to the residential address which is where the second respondent is understood to live; and for service on the second respondent at the same address, in both instances the documents are to be delivered by hand to that address; and service on the third respondent is to be by delivering copies

by hand to its registered address.

any application made by the respondents, that this order should be made public and published on the judiciary website, along with the judgment being made public, 14 days after the date when the respondents are served with the order. However, if the respondents within the 14 day period apply to the court to restrict publication and/or anonymity, the period will be extended until the court has had the opportunity to consider and determine that application; and provision is to be made for the NCA to keep the court updated as to the position in that regard.

with the order.

continues to carry out the civil recovery investigation, with a specified period, failing which the current order will be set aside. The period that I have provided for is 12 months from now. That is the period that the NCA considers is likely to be sufficient to complete the investigation.

give such an undertaking in POCA proceedings.

I have already referred to the statutory provisions in that regard. In these
circumstances all but two of the assets that are listed in the order are real property and there is no suggestion that the respondents require the Liechtenstein account and/or rental income from the properties in order to maintain their basic legal or living expenses.

judgment.

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