Court Dismisses Appeal against DPP
Amadea was seized by the US Authorities last May. It departed Lautoka Port on June 7 last year.
The Supreme Court has dismissed the appeal filed by Millemarin Investments Limited against the Director of Public Prosecutions (DPP) involving Russian superyacht, Amadea. The Court ordered that leave to Millemarin to appeal to the Supreme Court was granted, however, treated the leave to appeal hearing as the hearing of appeal and dismissed it accordingly.
Millemarin Investment Limited has filed a petition at the Supreme Court of Fiji against the Director of Public Prosecutions and Russian oligarch Suleiman Kerimov in relation to Superyacht, Amadea. Amadea was seized by the US Authorities last May after the Civil High Court registered the US warrant for US authorities seeking to seize Amadea and sail it to the US. It departed Lautoka Port on June 7 last year.
In the judgment delivered last Friday by the Supreme Court panel of Judges – Justice Anthony Gates, Justice Madan Lokur and Justice Brian Keith – at Veiuto Court Complex, the Judges analysed all the arguments and law surrounding the appeal. The panel said the US claimed that Amadea was beneficially owned by Suleiman Kerimov, a fabulously wealthy Russian citizen, who had been the subject of sanctions by the US since 2018.
They said a US court ordered its seizure, and the US authorities sought Fiji’s assistance to enable that order to be complied with.
The High Court registered that order, and in due course Amadea sailed to the US.
The appeal
An appeal against the registration in Fiji of the order was dismissed by the Court of Appeal.
The application for leave to appeal which was filed in the Supreme Court challenged the legality of that registration.
The petitioner, Millemarin Investments Limited, registered owners of Amadea claim among order things that Mr Kerimov was not the beneficial owner of the yacht, but that its real beneficial owner was Eduard Khudaynatov, another Russian citizen who was not subject of sanctions by the US.
On April 13, 2022, Magistrate Judge G Michael Harvey of US District Court for the District of Columbia issued a warrant for the seizure of Amadea requesting that Amadea be seized subject to forfeiture in the US.
The panel said the enactment in Fiji which governed how and when Fiji should provide legal assistance to a foreign state was the Mutual Assistance in Criminal Matters Act 1997 (MACMA).
The panel said it was enacted before the promulgation of the Convention, and constituted Fiji’s response to the United Nations Model Treaty on Mutual Assistance in Criminal Matters, which urged all states to strengthen further international co-operation and mutual assistance in criminal justice.
The panel of Judges said on one view of the case, this appeal was entirely academic.
Decision
They said now that Amadea was in US, there was little that the courts in Fiji could do to help Millemarin, even if it was found that the registration in Fiji of the warrant was legally flawed.
The Judges said any order of the Supreme Court setting aside the registration of the order would now had been overtaken by subsequent events, provided that its seizure was lawful under the law of US, as it was because it was seized pursuant to an order of the US District Court. “Once the horse has bolted, there is little point in locking the stable door,” the panel of Judges said.
They said the public were interested in the superyachts of Russian oligarchs however, that was to confuse the public interest with what was of interest to the public, and a surer basis for allowing the appeal to be heard was that the proper construction of the definition of foreign restraining order in Section 3 of MACMA was an issue which could well come up again and the High Court needed authoritative guidance on how the definition should be applied.
For this reason, the panel concluded that it was appropriate for the appeal to be determined on its merits.
The panel of Judges gave Millemarin leave to appeal to the Supreme Court because the appeal involved a far-reaching question of law namely whether an order made by a court in a foreign country for the seizure of property could amount to a foreign restraining order within the meaning of Section 3 of MACMA.
The panel said in accordance with the Supreme Court’s usual practice, they treated the hearing of the application for leave to appeal as the hearing of the appeal, but they dismissed the appeal.
The Supreme Court ordered a cost of $7500 too be paid to the Director of Public Prosecutions as costs of appeal to the Supreme Court.
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