Conversation with sworn attorney Artūrs Zvejsalnieks.
How do you assess the acquittal of the former head of Latvijas Dzelzceļš Uģis Magonis and the Estonian businessman Oleg Osinovskis and the subsequent public statements of the Minister of Justice Jānis Bordāns (JKP) expressing outrage at the verdict and questioning the professionalism of Vidzeme District Court judge Kārlis Jansons?
Such statements are not acceptable, because the Minister of Justice is making unfit comments on the outcome of a particular case. It borders on threatening a judge because he is talking about a particular judge. It can only be seen as an attempt to intimidate the court and instruct the higher judge what the judgment should be in this case. Such statements by the Minister of Justice, and even more - in the area of his responsibility, are to be taken very seriously: it is interference in the powers of the independent judiciary and also brutal political pressure. It is also a very serious violation of the presumption of innocence, because, moving away from the specific case, everyone is considered innocent until it has been decided by a court. This can only be done by a court, not by a minister, politician or anyone else. Such statements are prohibited, for example, in the Criminal Procedure Law. And the European Court of Human Rights in similar cases points to a violation of the presumption of innocence. This is prohibited by international law, including Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the presumption of innocence, which prohibits officials from making public statements of guilt before the conviction of an accused person has taken effect.
Bordāns clearly states what the judgment should be and clearly indicates what the consequences should be for the judge hearing the case. It is difficult to even imagine a more serious violation than what has been committed here. This is a pressure not only on the judge in question but also on other judges who may make judgements in the future that are not to Bordāns liking. He says that the evaluation of the quality of Kārlis Jansons' work should be submitted to the Judicial Disciplinary Committee.
It does not matter what the outcome of this case will be in further appeals because the Minister has created a chilling effect by indicating what the judgment should look like.
However, judges can also be criticized. There have been cases where a court judgment has not really made sense.
One thing is criticism because there is freedom of speech. But in this case, public statements have been made by the Minister of Justice, who is a senior official, and on his part, such statements are absolutely unacceptable.
Bordāns is a lawyer. Could it be that he has not heard of legislation prohibiting such statements?
That would be surprising - it is the basic truth that underpins a democratic state. The Law On Judicial Power has been in force since 1991, and it says that it is not permissible for a Minister to interfere in the work of the courts, that a judge cannot be personally asked to hear a case, that a judge cannot be punished for a ruling. This was decided at the very beginning of the restoration of Latvia's independence. These are axioms that should not be crossed, and it is surprising that Bordāns dares to do so.
On January 29, Bordāns' remarks will be evaluated by the Judicial Council. Is it not possible that it will call them appropriate and even express approval? The Judicial Council consists of, for example, Bordāns' comrade-in-arms Juris Jurašs (JKP).
We will see. Unfortunately, such issues are becoming more politicized, and unfortunately, there is a tendency to politicize litigation. We will now see the impact of politics in the Judicial Council. In my opinion, the Judicial Council should react sharply and point out that such statements by Bordāns are not acceptable.
The findings of the audit of the State Audit Office mentioned as a negative phenomenon the practice that the prosecutor's office maintains prosecutions in cases that are unpromising. However, we see that in the Magonis and Osinovskis case, the prosecutor's office will appeal the case to a higher instance and continue. Why does the prosecutor's office not listen to the State Audit Office?
Unfortunately, this is nothing new. The opposite direction is observed in parliamentary circles, one of the visible representatives of which is Andrejs Judins (JV), Chairman of the Criminal Law Policy Subcommittee of the Legal Affairs Committee. And the prosecutor's office itself does not want to take responsibility for closing the case, and it operates on the principle of "let's just send the case to court and see how it turns out". Now even the law has been changed. At one time, it was the norm that if the prosecutor had no doubts about the case being unpromising, he could close the case. There is no such rule now.
Judges are somewhat more protected from political pressure, and they can't be easily dealt with, but if the prosecutor ends a loud case in which the ruling party and crowd demand blood, he could have bigger problems. Rarely will any prosecutor be so brave because prosecutors do not have the same level of protection as judges. If the Minister of Justice Bordāns can say something like that about a judge, then the prosecutor must be even more afraid of his life and career. It is much easier to demote a prosecutor or get rid of him altogether.
Before these statements about the Magonis and Osinovskis case, Bordāns managed to act unusually in another case. Unable to wait until the police handed him official information about the case of bailiff Rolands Veinbergs, in the morning he wrote on the social network Twitter that he had received verbal information that there was a criminal proceeding. Did the Minister do the right thing?
The Minister, if he has any information, should not disseminate it, but pass it on to the relevant authorities. The Minister is not the one conducting the pre-trial investigation. In this case, the statements are not so sharp, but… Violation of the presumption of innocence can also be invoked here, as public officials must be very careful with their statements. The Minister of Justice may initiate an investigation and initiate disciplinary proceedings against a particular bailiff, but he may not comment on his guilt or innocence and indicate the outcome of the disciplinary proceedings. With such a public message, the Minister is likely to jeopardize the progress of the case. Because Veinbergs or his defense will be able to say that political pressure has taken place. It could also end as a lawsuit in the European Court of Human Rights.
This is not the first time that something like that has happened in Latvia - the former Prime Minister, Minister of Justice and also a judge carelessly spoke about the case of a bankrupt banker, and in the end, there was a ruling of the European Court of Human Rights against Latvia. Can Bordāns hope that it will be different this time?
Egils Levits should be quoted here: "Oral discipline must be observed." What can be said by a journalist, a member of an ordinary party or any commentator on the Internet cannot be afforded by the Minister of Justice.
Five sworn attorneys have sent a letter to Prosecutor General Juris Stukāns urging him to immediately stop the established uncontrolled practice of initiating criminal proceedings following reports from the Financial Intelligence Unit (FIU). The letter states that it is not acceptable to uncritically accept the FIU's view on cases about money laundering. Do you agree with what your colleagues wrote?
Yes, I agree. Currently, non-residents are being expelled from Latvia. It will be very difficult for the state and the commercial banking system to regain the confidence of foreign investors. What has happened in recent years in the fight against money laundering is, in essence, a presumption that money has been obtained criminally. I have a client from Russia who had relied on Latvia and, thinking that Russia is not a safe place to keep money, deposited money in one of the Latvian commercial bank accounts. He declared everything. However, he was detained for two days, his money was seized and he was given a resolution that he had received money at an unknown time, at an unknown place in the territory of the Russian Federation, as part of an unknown crime. He has provided all the evidence for his business, but no answers have been received so far.