CL-2022-000456 - [2025] EWHC 1938 (Comm)

8 March 2022 was, of course, the very day before Mr Melnichenko was added to the list at Annex I to Regulation 269. It also happened to be his 50^th birthday, and he was taking a break, trekking in Tanzania on Mount Kilimanjaro. Against this background, the Banks and Tecnimont contended that it was inherently unlikely that Mr Melnichenko would have had both the immediate foresight that he would be sanctioned on the very next day, and the wherewithal to sign the Deed of Retirement.

The first disclosed document that refers to the Deed of Retirement is an email dated 10 March 2022, sent by Ms Giovana Papamichael (an in-house lawyer with an AIM Capital email address, who elsewhere described herself as writing on behalf of AIM Capital) to Mr Alexei Podkholzin (whose email address suggests he worked for AIM Management LLC, a separate company, incorporated in Russia, which provides management services to the EuroChem group and others). Ms Papamichael’s email stated:

“The Firstline Trust provides under Clause 5.1 that "Any Beneficiary (not being a minor) may by deed declare irrevocably that he shall cease to be a Beneficiary". Mr. M being the sole Beneficiary of the Firstline Trust informed the trustees on the 8th of March 2022 about his resignation. Upon his resignation, Mrs. M is automatically appointed as protector and Beneficiary of the Trust.”

The email attached a pdf of the Deed of Retirement. I was told that the metadata of that pdf indicated a date of 10 March 2022.

This email raises a number of questions: How, when and in what words did Mr Melnichenko inform “the trustees” on 8 March 2022? Who did Ms Papamichael mean by “the trustees” – (i) Linetrust PTC, (ii) its directors, (iii) AIM Capital as the Firstline Trust’s document repository? How, and when, was the Deed of Retirement transmitted from Tanzania to (i) “the trustees” or (ii) AIM Capital/Ms Papamichael? I should note at this point that Linetrust PTC and AIM Capital appear to have the same address in Cyprus; this, together with the terms of Ms Papamichael’s email, tends to confirm that AIM Capital provided office space and services to the Firstline Trust, and held its documents.

Furthermore, when Mrs Melnichenko resigned as protector and appointed Mr Fokin to replace her, she did so by a further Deed of Retirement dated 17 March 2022. This too was witnessed by Mr Tree, but it was common ground that, on 17 March 2022, Mrs Melnichenko and Mr Fokin (who also signed it) were in the UAE. Thus, further questions arise: Who is Mr Tree? Where was he on 8 March 2022 and on 17 March 2022? Why did Mr Melnichenko take him to Tanzania to join in the 50^th birthday celebrations?

Given that this issue concerns the authenticity of the date of a document signed by one person and witnessed by another, the most obvious way to respond to the notice to prove would have been to call a witness: ideally Mr Melnichenko or (perhaps still better) Mr Tree. The questions arising from Ms Papamichael’s email would have best been addressed by calling evidence from Ms Papamichael. No such evidence was called and none of these individuals was offered as a witness.

Moreover, in order for Ms Papamichael to be able to attach it to her email on 10 March 2022, Mr Melnichenko’s Deed of Retirement must first have been transmitted to Cyprus, presumably as a pdf attachment to an email, probably to someone at AIM Capital or with an AIM Capital email address. Scrutiny of that original communication (including metadata, as well as the text of the covering message) would inevitably have been revealing. However, it has not been disclosed.

Furthermore, in assessing this issue, I have in mind that the letter by which Mr Melnichenko resigned his directorship of EuroChem AG (purportedly, 9 March 2022) and the indemnity in favour of the Valla trustees (purportedly 28 February 2022) were both backdated.

Taking all these factors together, in my judgment, the Claimants have failed to prove the date of the Deed of Retirement. I do not accept that it was signed by Mr Melnichenko on 8 March 2022, or before he was added to the list at Annex I to Regulation 269. It seems to me more likely that it was created on 9 or 10 March 2022 and backdated.

The dispute as to the date of Mr Melnichenko’s retirement as discretionary beneficiary attracted a good deal of attention at the trial, but it is important to put it into context in terms of the issues that I have to determine. If Mr Melnichenko’s Deed of Retirement did not in fact come into existence until after Mr Melnichenko had been designated under Regulation 269, and if Linetrust PTC and its directors knew this but nevertheless acted on the Deed as if it had taken effect before sanctions were imposed on Mr Melnichenko, that might have significant consequences for them. However, on no view is the Deed a nullity. Its effect has been real: Mr Melnichenko has in fact retired as discretionary beneficiary and he has been replaced by Mrs Melnichenko.

The significance of the point to these proceedings is, therefore, oblique. If, as I have concluded, Mr Melnichenko’s Deed of Retirement was backdated, this was done by him deliberately, in an attempt to evade or at least minimise the effects of his designation on 9 March 2022. Furthermore, this must have been known to those who knew the true date – which must include not only the directors of Linetrust PTC (because they must be aware that, contrary to Ms Papamichael’s email of 10 March 2022, Mr Melnichenko had not informed them on 8 March 2022), but also, in all likelihood, AIM Capital – almost certainly in the person of Mr Fokin, who was then a director of AIM Capital as well as being very close to Mr Melnichenko. The fact that none of these individuals objected to Mr Melnichenko’s ploy to evade EU sanctions is concerning, and of some relevance to the points that I have to consider later in relation to Mr Melnichenko’s ability to control the Claimants.