On February 22 of this year, the panel of judges of the Riga Regional Court under the leadership of Judge Irīna Jansone promised to issue the full text of the judgment in the so-called Lembergs case yesterday - June 22. Meanwhile, the need to keep the mayor of Ventspils in prison is being questioned in the legal community.
The lawyers Neatkarīgā has interviewed - sworn advocates, criminal law experts - admitted:
although the law allows for the application of an arrest as a security measure after a conviction at first instance without justification, it is not clear why such a security measure was applied in this case.
Sworn advocate Saulvedis Vārpiņš expressed his conviction that the court should have substantiated the decision on the application of arrest in the abbreviated judgment: “There must be a justification when making such a decision. This is a major restriction on human rights. It is interesting why such a provision was included in our legislation that if a conviction for serious and particularly serious crimes is pronounced /at the first instance/, one can be arrested immediately.
Abroad there is no need to wait long for second instance decisions. In contrast, here there have been cases where you have to wait a year or more for next-instance arrest decisions while a person is in custody. Why? Such a provision of the law is absolutely incorrect and inconsistent with the situation in Latvia. This provision was once included in the law so that persons would not run away after a convicting first instance judgment. When deciding on the application of such a harsh rule, the court must look at how it has historically been enshrined in law and assess whether the defendant is indeed one who is about to flee, or whether the imposition of an arrest is only a punishment for being too abrasive in court, too active in defending one's rights."
Sworn advocate Artūrs Zvejsalnieks explained that the application of arrest without justification after the judgment of the court of first instance is a problem not only in the so-called Lembergs criminal case: “A full judgment may take a very long time to be announced - half a year and even longer. There is an abbreviated judgment without a statement of reasoning, which cannot be appealed. Meanwhile, the person is sitting in jail and waiting. This is the case in many criminal cases."
Asked if we could not compare our human rights situation with Russia or Belarus, he replied: "Maybe we should not so radically compare it to Russia and Belarus, but if we read these provisions of the law, then, in essence, they are no different from Belarusian or Russian provisions. Another question is how they are applied. For authoritarian regimes, this will allow them to argue that the laws are the same for you as they are for others. It is in this context that we can talk about it. In this way, we are giving weapons to authoritarian regimes. In the specific Lembergs case, an arrest is rather strange. I have not been involved in this case, Mr Lembergs has enough lawyers and they probably know what they are doing. As far as I know, he has attended all the hearings and has not been late to any of the hearings. He has gone to the courts for many years. There is no evidence that he has acted against them or done anything else wrong. If he had wanted to escape, he would have been able to do so over the years. Besides, before the abbreviated judgement, he already predicted that he could be arrested, and even then nothing prevented him from escaping if he wanted to. His arrest - it's strange. Moreover, the events for which he was tried are not very recent. It is not typical to be arrested in such cases."
Asked whether the court decision could have political motives, A. Zvejsalnieks said: “It is difficult to say what were the motives of the court to decide in this way. You can idealize and say that the courts are completely independent and are not under any pressure. But most likely this is not the case, unfortunately. That should be the case, but practice shows something else.”
Asked whether it could be that the court was influenced by the position of the Minister of Justice Jānis Bordāns, A. Zvejsalnieks answered: “That is just guesswork again. Both the Collegium of Sworn Advocates and senior officials of the judiciary condemned the statements of the Minister of Justice regarding the criminal case of Uģis Magonis and the judge of the Limbaži court. The current Minister of Justice has also repeatedly spoken directly about Lembergs' guilt. Such statements are inappropriate and could affect the court and make the court rethink the decisions it makes. Therefore, the law prohibits such statements. It is one thing if a politician, such as a Member of the Saeima, who does not have a direct influence on the judiciary, says it, but if it is said by a Minister of Justice who has an influence, then it is already very different.”
Gunārs Kūtris, the former Chairman of the Constitutional Court, one of the drafters of the Criminal Procedure Law, explained the following: “The law allows the court to apply arrest as a security measure if a person is sentenced to imprisonment for serious and especially serious crimes. There are two reasons for this - a person can avoid serving a sentence by fleeing the country. The second situation is that the court wants to ensure that the judgment will be enforceable. Of course, the judgment has not entered into force. This is not a punishment, but only a security measure. Why it is sometimes applied and sometimes not is a matter for the court and the question is whether the court had any circumstances that led it to believe that was what should be done. Another security measure could just as well have been applied. If I have to say, without objectively assessing the defendant and without knowing the case file, I can say: the court has been granted such a right by law, and if the court finds a person guilty of a serious crime, the court must ensure that the person does not disappear. Another thing is whether there is no other way to ensure that the person does not disappear. But that's another matter."
Asked whether the court should not have explained in the abbreviated judgment that it had information that the defendant was going to flee and that it had no other means to ensure the defendant did not escape, G. Kūtris explained: “The law does not require such reasoning. Such reasoning is required for a decision on pre-trial arrest. Then there must be facts that show that the person is going to run away. The judgment of the court of first instance is already one step further than the pre-trial procedure. Internationally, it will be recognized that the court has already found the person guilty. This means that the judge has been convinced that the person has committed the crime, deserves imprisonment, and the security measure is only a guarantee that the person will not run away. In such cases, the court no longer has to argue why the person should be isolated from society. But this is an internal consideration of the court itself, whether it is necessary or not. Here we can discuss the reasons why. On that, I can't say anything out loud."
Asked about Latvian officials who condemn Russia and Belarus of holding opposition in prison, but everything is fine when A. Lembergs, who is in opposition to the Latvian authorities, is being held in prison, G. Kūtris explained: “I would not say that you could compare here with Russia or Belarus. If we draw political parallels, I assume that, in order to damage political activity in a particular region, a person is thus excluded from the game, even temporarily, even until July. But I would not like to believe that three judges would do such a political game: I would not want to say they were ordered to. I do not believe that the judges had plotted in this way. Why should they serve or please a minister? After all, ministers come and go. The judge must do their job. I would not like to believe that this is a preliminary scheme. There are many questions here. We can just as well analyze whether, in judging this case, the judges have not felt the pressure of one section of the public who considers the defendant to be bad. Judges, seeing the evidence of guilt in the case file, make a conviction and at the same time apply arrest. But I also don't believe that the three judges could be affected like that. In such criminal cases, the court will most often use arrest. Does the personality of the defendant change the attitude of the court - probably yes. Whether the defendant should have been treated more gently and why - you can also turn the question around like this.”
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