By Stelios Orphanides
The Cypriot government objected to a request filed by Hermitage Capital’s founder Bill Browder for an emergency injunction barring Cyprus from cooperating with Russia in a probe against him, citing also the court’s lack of capacity to decide on the matter.
“The district court lacks the jurisdiction to examine the application in question or to examine any decision of the competent authority taken under the convention of international cooperation,” Attorney-general Costas Clerides told the court according to a document seen by the Cyprus Business Mail.
The court, the AG added, may not rule on the application for an injunction as only the competent authority of the Republic, if -and provided- that, preconditions stipulated by the law are fulfilled.
“This discretion is not subject to a court’s control,” Clerides said in the document signed by a group of government lawyers led by senior legal counsel for the government Theano Mavromoustaki. “Even if there were a possibility for the court to control the competent authority’s decision, passing on the requested evidence cannot be prevented as the very law defines in which cases an authority may deny cooperation and this case does not fall in this exception”.
Browder resorted to a Cypriot court in response to a request by the Russian government for legal assistance in a probe which he considers “politically motivated” as it came in response to his campaign for justice for Russian lawyer Sergei Magnitsky who died in prison eight years ago after exposing a $230m (€196m) tax theft. The police officers Magnitsky implicated in the case, arrested him, subjected him to torture and deprived him access to medical care.
Browder’s campaign convinced several governments to adopt a Magnitsky Act with measures targeting those considered responsible for the lawyer’s death. The Council of Europe asked its member states to ignore Russia’s requests related to the investor-turned-activist and to follow the example of the US, which was the first country to introduce a Magnitsky Act in 2012. Interpol also regularly ignores Russia’s arrest warrants against Browder.
Cypriot authorities do not consider the offences Russia investigates as “political offences” as described by Cypriot law, according to the document. “Even should it be proved that they are ‘politically motivated offences,’ as the plaintiffs argue, these are not covered by the legal framework and they can in no case constitute a reason to deny the requested (legal) assistance,” it said.
The applicants did not present evidence or reason supporting the issue of the injunction, lack the right to prevent an “act of government” and therefore, should the court rule in their favour, this would violate the “principle of distinction of powers,” the document said.
The Cypriot government temporarily suspended in early October its cooperation with Russia in the probe after Browder and his associate Ivan Cherkasov filed their application for an injunction and a lawsuit, days ahead of President Nicos Anastasiades’s visit to Russia, angering Moscow. In his meeting with Anastasiades on October 24, his Russian counterpart Vladimir Putin said that he expected a satisfactory decision which would allow the two countries to cooperate. In his response, Anastasiades said that the responsibility laid with the court.
Cyprus’s economy, which emerged in 2015 from a prolonged recession, heavily relies on Russia.
The attorney-general “will suffer irreparable damage” should the court satisfy Browder’s application as the Cypriot official may be compelled to violate obligations stemming from international agreements which may have consequences, the document said.
The court is expected to give instructions to the parties on December 4, about the future course of the procedure.
Christos Pourgourides, the lawyer representing Browder’s side, is likely to file a supplementary affidavit in response to the government’s objection.