Fiji Sun

Court Dismisses Appeal against DPP

Amadea was seized by the US Authoritie­s last May. It departed Lautoka Port on June 7 last year.

- ASHNA KUMAR SUVA

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.

Feedback: ashna.kumar@fijisun.com.fj

 ?? Amadea at the Lautoka Port last year. Photo: Leon Lord ??
Amadea at the Lautoka Port last year. Photo: Leon Lord

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