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Omelau v Republic of Palau

Pays/Territoire
Palaos
Type de cour
Nationale - cour supérieure
Date
Déc 28, 2009
Source
UNEP, InforMEA
Nom du tribunal
Supreme Court of the Republic of Palau
Siège de la cour
Koror
Numéro de référence
PWSC 3
Langue
Anglais
Sujet
Pêche
Résumé

In this case, Plaintiff Ngirabrenges Omelau filed a complaint against the Republic of Palau Division of Fish and Wildlife Protection (DFW) seeking the return of 28 kesokes fishing nets, attached floaters and sinkers, and a net bag. The DFW confiscated the nets as the net mesh size was under 3 inches and considered illegal. However, the DFW did not file any criminal charges or commence civil forfeiture proceedings against the Plaintiff. DFW then distributed the confiscated nets to be used for solely agricultural purposes. The DFW provided little or no oversight to ensure the nets were put to legal use and did not maintain a log of the new/current owners of the nets. The court found that the mesh holes of the nets were under 3 inches diagonally and therefore unlawful to possess under 27 Palau National Code (PNC) 1204(m) and (n). However, the court found that the PNC required either a trial and conviction of a criminal violation or must seek a civil forfeiture prior to distributing nets as DFW property. This allows for citizens to contest the forfeiture of property in the case of criminal or civil proceedings and upholds the principle of due process. When the movant seeks the return of property before the indictment or information, the movant bears the burden of showing that the seizure was illegal and that he/she is entitled to lawful possession of the property. In this case, the court that found that because the government had abandoned its investigation, the burden of proof in demonstrating that it has a legitimate reason to retain the property rested on the government. Thus, while the court found that the DFW had properly seized the nets due to the illegal mesh size, the DFW had wrongfully seized the nets without then instituting criminal or civil proceedings and wrongfully disposed of the property without effecting a valid seizure. As a result, the court ordered that DFW return any nets and related materials to the possession of the Plaintiff in a manner that no longer violated the PNC. In addition, Plaintiff was ordered by the court not to use the nets for fishing.

(Source: World Legal Information Institute (WLII), http://www.worldlii.org/cgi-bin/sinodisp/paclii/pw/cases/PWSC/2009/3.html?query=fish, last accessed 06/06/2018)

Texte intégral
3.html
Site web
www.worldlii.org