European human rights lawyer: Arrest must always be substantiated

The case law of the European Court of Human Rights (ECHR) states that arrest must always be objectively justified and that the detainee must always have the right to appeal against the arrest order, regardless of whether the decision is taken at the pre-trial or trial stage; regardless of whether the decision was made in abbreviated or full judgment, says ECHR case specialist, lawyer Dr. iur. Inese Nikuļceva.

What is the message of the opinion of the Ombudsman Juris Jansons regarding the arrest of Aivars Lembergs?

The opinion states that a person's right to liberty has been violated. It says that the arrest should not have been made in this way. In his opinion, the Ombudsman emphasizes the need to state the reasoning. The arrest was ordered by the abbreviated judgment and it had absolutely no justification for the arrest in it. This is the main idea contained in the Ombudsman's opinion.

This is a harsh opinion that does not look good for the Latvian state. The Ombudsman has found a serious violation of human rights, but the person against whom the violation has been committed continues to remain in prison. What should be the consequences of this opinion in a democratic country governed by the rule of law?

What do you mean by consequences?

If the Ombudsman declares that a person's right to liberty has been violated, shouldn't the state authorities take action, react to what has happened in order to undo the violation, revoke the applied security measure; take the necessary steps to let the person finally find out the true grounds for arrest?

The Riga Regional Court should have reacted before the full judgment was made public. It is clear from the Ombudsman's opinion that the Ombudsman has contacted the court. Thus, the court was clearly aware that the situation with the arrest was not legal. At the same time, from February 22 to June 22, until the full judgment, various requests from the defense were written to the Riga Regional Court to provide grounds for arrest, review the security measure and so on. However, all these requests were rejected, saying that nothing can be done until the full judgment has been handed down. As this was obviously wrong, the Riga Regional Court should have taken into account the human rights aspect, not only the norms of the Criminal Procedure Law. The current situation is that the grounds for arrest are set out in the full judgment, which was revealed on June 22. Another question is whether this justification is reasonable.

I have read this 2.5-page justification from the 1,920 pages of the full judgment and I think that the arrest cannot be called justified.

Yes! But that is another matter. The fact is that however good it is, it exists now. On the other hand, during those four months, from February 22 to June 22, there was no justification at all. If there is no justification, the person can't defend himself. The person does not know why such a security measure was applied to him. But there was no way to defend in any case. Even writing complaints and requests all the time did not lead to anything. The answer from the Riga Regional Court was that nothing could be done because we must wait for the full judgment.

Complaint to the Ombudsman was precisely about these two circumstances. The first is that no justification was given for the security measure applied. The second is that it was not possible to defend oneself during these four months. Do whatever you want, the Riga Regional Court only answered - sit and wait for the full verdict. It seemed to us that this was not right. It must be possible to complain about the arrest. However, this part of our complaint was not fully supported by the Ombudsman. He focused more on the lack of justification for the security measure.

What will be your client's future actions regarding his human rights?

He has already lodged a complaint with the European Court of Human Rights regarding his arrest.

As the human rights violations identified by the Ombudsman continue, since there is no justification in the full judgment, only allegations without facts, and your client remains in custody, how would you describe the current situation?

Of course, that was no justification. If a person has already received the first-instance judgment and is being remanded in custody, there must be specific facts that he intends to flee or endanger someone, rather than basing this decision on presumptions. But if we talk about what the conclusions are, then there could be two. The Riga Regional Court clearly misinterprets the Criminal Procedure Law as saying that nothing can be done by the defense while waiting for the full sentence, which in this case was four months. This is not the correct interpretation. During that time, as at any other time, the defense must have the right to request a review of the security measure applied and it must be examined by a court. It is necessary to observe the norm that the necessity of arrest must be assessed every two months, even if there is no request from the defense to assess it. If it is considered that this interpretation of the Riga Regional Court is correct, that nothing can be done, then the Criminal Procedure Law must provide for what happens with the arrest while the full judgment is being written, which can last four months, but can also last for two years.

Has there been a similar precedent in Latvia as in the Lembergs case when a person is arrested without justification after a first instance judgment?

There is no precedent for the Lembergs case in Latvia. The problem is that Lembergs case is very big. Usually, you don't have to wait that long for a full judgment. No! I do not recall there being such a precedent. When writing complaints to both the Ombudsman and the ECHR, I studied the case law. There is ECHR case law that arrest must be substantiated. That is unequivocal. It cannot be that there is no justification. Even if a court convicts and arrest is applied as a security measure, this must also be substantiated. The idea that arrest must be allowed to be appealed has been taken from the case law of the ECHR. It cannot be the case that a person is arrested and that's it, no one can appeal this decision.

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