Unsuccessfully moved SC in 2017 in FR case

By Shamindra Ferdinando

A Ukrainian national Gennardily Gavrylov is among eight persons acquitted by the Permanent High Court Trial-at-Bar in a high profile case filed against them over operation of a floating armoury  (MV Avant Garde) chartered by Avant Garde Maritime Services (AGMS).

The vessel belonging to Sri Lanka Shipping Company Limited has been chartered in terms of an agreement between AGMS and Rakna Arakshaka Lanka Limited (RALL), a government-owned business undertaking affiliated to the Defence Ministry, for deployment in East Africa to help fight sea piracy.

The AGMS vessel has been deployed to provide services in support of international naval operations meant to protect shipping off the Somali coast

Having chartered MV Merou, the AGMS, a subsidiary of Avant Garde Security Services (Pvt) Limited, named it MV Avant Garde.

Sources said that though Gavrylov has been granted bail during the proceedings, he wasn’t allowed to leave the country. Gavrylov, Captain of the vessel, in spite of being released on May 21 is yet to leave the country.

The other seven released were Avant Garde Chairman retired Commando Major Nissanka Senadhipathi, Retired Navy Commodore Vishvajith Nandana Diyabalanage, Don Albert Tillakaratne, Victor Samaraweera, who served as Chairman of RALL, Nilupul de Costa, Retired Air Vice-Marshal Ponnathurai Balasubramanium Premachandra and Former Additional Defence Secretary Saman Dissanayake

The case was heard before a three-judge bench comprising Justices Aditya Patabendige, Manjula Tillakaratne and Mahen Weeraman.

Declaring the May 21 verdict Justice Patabendige said that one-time Defence Secretary Karunasena Hettiarachchi, who subsequently served as Sri Lanka’s Ambassador to Germany told the court that the Defence Ministry issued permission to AGMS and RALL to deploy the vessel carrying arms and ammunition in the Red Sea.

In January this year  the court released five suspects namely the RALL (first accused) , AGMS (second accused), former Rakna Lanka Chairman, retired Major General Waduge Palitha Piyasiri Fernando (third accused), former Rakna Lanka CEO, retired Major General Karunaratna Banda Adhikari Egodawele (fourth accused) and the twelfth accused former Senior Additional Defence Secretary Damayanthi Jayaratne owing to the inability to maintain the charges under the Firearms Ordinance and the Explosives Ordinance.

Gavrylov during the previous administration moved the Supreme Court against what the petitioner called his wrongful, unjustifiable and illegal arrest off Galle on the morning of Oct 6, 2015 and the continuing detention. There hadn’t been a previous case of a foreigner filing a fundamental rights violation application here under such circumstances in terms of Article 11, Article 12 (1), Article 13 (1), and Article 13 (2) of the Sri Lanka Constitution.

The petitioner alleged he was subjected to cruel, inhumane and degrading treatment through the false accusation that he had entered Sri Lankan territorial waters. Gavrylov took over the command of the vessel on July 24, 2015.

The petitioner alleged that SLNS Nandimithra, a fast missile vessel (FMV), had taken ‘MV Avant Garde’ into custody in international waters 15 nautical miles from the baseline. According to him, though the vessel was to be delivered to Sri Lanka Shipping Company as per instructions received in Aug 2015, he received subsequent instructions through proper channels to reach Galle port.

Gavrylov claimed that a seven-member squad of SLN personnel had boarded the vessel at 7.15 am, on Oct 6, 2015, after he refused directives issued by the SLN to proceed towards the Galle port and drop anchor near the Galle port. Initially, Gavrylov had been directed to proceed towards Panadura and drop anchor.

The Deputy Harbour Master of Galle who is also the Acting Residential Manager of the Galle port in his statement too had admitted that the vessel was seized outside territorial waters of Sri Lanka, the petitioner alleged. The then 49-year-old Gavrylov, father of one, filed the FR petition in the wake of Ukraine intervening on his behalf.

On a directive given by the Galle Magistrate’s court the vessel was handed over to Sri Lanka Shipping Company on Dec 16, 2016 and left for India on the following day. The vessel was scrapped at Alang scrapyard in Gujarat.

The vessel had been chartered for a period of two years with effect from April 1, 2014 to operate in the Red Sea.

The Sirisena-Wickremesinghe administration alleged that the then Defence Secretary now President Gotabaya Rajapaksa handed Senadhipathi a lucrative contract to provide maritime security services to protect international shipping passing the region from pirates, without following proper procedures, a charge denied by Rajapaksa.

The seizure of MV Avant Garde sharply divided the yahapalana administration. The then Law and Order and Prisons Reforms Minister Tilak Maparana, PC, quit the Cabinet after strongly criticizing the action taken against Senadhipathy’s operation. The then Justice Minister Wijeyadasa Rajapakse, too, opposed the move whereas Messrs Patali Champika Ranawaka, Dr. Rajitha Senaratne, the then leader of the Democratic Party Field Marshal Sarath Fonseka, the JVP and civil society groups campaigned against Senadhipathi’s outfit. The then Minister and present UNP Chairman Vajira Abeywardena and Solicitor General Suhada Gamlath were also accused of backing what they called an illegal operation.

Before giving up ministerial portfolio, one-time Attorney General and UNP National List lawmaker Marapana compared the seizure of MV Avant Garde with the exposure of the Directorate of Military Intelligence (DMI) run safe house at Aturugiriya in January 2002.

The former Attorney General Dappula de Livera, PC, alleged during the period from 07 August 2012 to 8 January 2015, the government suffered a financial loss of Rs. 11.4 billion rupees as a result of AGMS being given an opportunity to operate a floating armory. The AG on August 21, 2019 requested the Chief Justice Jayantha Jayasuriya (his predecessor as AG) to nominate a three-judge Trial-at-Bar in the Colombo High Court with no jury, to hear the case.

At the time the SLN seized the vessel Yuvanjana Wijetillake, PC, functioned as the AG.

The AG was to prosecute the 13 accused on 7,573 charges. However, the Permanent High Court Trial at Bar said of the 7573 counts filed against the accused, only 19 could be carried forward in the case.

The Permanent High Court Trial at Bar told AG to consider proceeding with the case under the 19 charges filed against the 08 accused (those acquitted on May 21, 2021)

The amended indictment filed by the AG, too, was dismissed on the basis it was contrary to the law and the trial could not proceed even with the amended indictment.