In the appellate instance, Aivars Lembergs is to be sentenced quietly - in writing
Lembergs' criminal case appellate judge Sandra Amola has notified the Latvian Television news program "Panorāma" of the decision to adjudicate this criminal case by December 21 of the following year in a written manner.
The decision signed by the judge states, among other things: “The accused Aivars Lembergs, sworn advocates Māris Grudulis, Olga Hincenberga, Irina Kauke, Jānis Rozenbergs and Oskars Rode have requested in the appeals that the case be assigned for oral hearing. Based on the first part of Section 12 of the Law on the Management of the Spread of COVID-19 Infection, the judge determines that a criminal case on appeal is to be settled in writing. Taking into account the duration of the criminal proceedings (12 years) in the court of first instance, the amount of evidence and information obtained, the judge of the court panel acknowledges that the case is possible to be judged in written manner according to the materials of the case, within the jurisdiction of the appellate court.
Section 12 of the Law on the Management of the Spread of COVID-19 Infection states: “A criminal case may be tried in the written procedure in accordance with the appellate procedures also in cases not referred to in the Criminal Procedure Law. A prosecutor or a person whose interests and rights are infringed upon by a complaint or protest may make a request for the case to be examined in the oral procedure by stating the grounds for it."
On the other hand, Article 559 of the Criminal Procedure Law allows a case to be adjudicated in a written proceeding only on the condition “if a prosecutor or a person whose interests and rights are infringed by the complaint or protest does not object against it”.
So soon we will find out which rule of law will be stronger.
Witnesses no longer need to be questioned
Similarly, S. Amola also substantiated her decision in the LTV program: "The judge of the Criminal Court Chamber of the Riga Regional Court has taken into account the duration of the criminal proceedings in the court of first instance, the amount of evidence and information obtained and acknowledged that the case is possible to be tried in written manner."
A.Lembergs' lawyer Māris Grudulis told LTV that he will discuss further actions with A. Lembergs, while the businessman A. Sormulis' lawyer Dr iur. J. Rozenbergs said about the judge's decision to LTV: “This case could be too complicated to be considered in good quality in the written procedure. Therefore, it is likely that our request for an oral hearing could be made by the end of this week."
Judge has also emphasized to LTV that the hearing of the case in writing is possible because there is no need to examine witnesses, because already in the first instance all witnesses have either been questioned or their examination has been refused.
The judge is absolutely right that the court of first instance rejected almost all defense requests for the examination of witnesses, both for summoning witnesses and for the defense to allow the examination to be completed (the court allowed prosecutors to examine witnesses for however long they wanted, while it was significantly limited for defense). This was the most important (but not the only) objection of the defense about the course of the proceedings at first instance and the argument that the rights of the defense are being ignored and the truth is not being determined.
Thus, in A. Lembergs case, the experience of 12 years of legal proceedings shows that in the name of speeding up the proceedings, the right to a fair trial can be ignored and the Saeima may even amend laws. In order to speed up the proceedings, court hearings were held four days a week, even at the height of Covid-19 infection during the state of emergency.
Ignoring human rights
If the case is heard in writing, then the appellate instance will not be able to eliminate the procedural and human rights violations committed by prosecutors and courts in the first instance, which were mentioned both by the defense counsel in their debate speech and by A. Lembergs himself in his last word and in several interviews.
For example, in his last interview at Riga Central Prison, A. Lembergs listed the following violations of the rights of the defense: "The prosecution had an unlimited time during the debates, but the time allocated for the defence was significantly shortened. The Court did not allow me to use services of the lawyer of my choice whom I had hired - Aivo Leimanis, and they forced me to use a state-appointed lawyer Genādijs Ivankins, who was busy at other trials. During the debates the prosecution spoke for a year. I was given 4 days for my final statement. 100 people were questioned during the trial as prosecution witnesses. Of the 100 defence witnesses the judge allowed 3 to be questioned. During the trial the indictment was changed 3 times. No time afforded to familiarise ourselves with the new indictments. The indictment was also changed after the witnesses had already been questioned. The evidence in support of the new indictment was not examined. The government caused deliberate delays in the trial. Court hearings had to be rescheduled at prosecutors’ fault. 75 volumes of evidence by the prosecutors included in the case material were not used in the trial. How can you call it evidence if it is not used in the proceedings? Why were they even brought to court? The ruling has been copied word by word, comma by comma, containing the same grammar and textual mistakes, from the indictment, the motivation is 100% that was used by the prosecutors during the debates. Almost all arguments put forth by the defence have not been mentioned and analysed. For example, concerning the extortion of the bribe from Ainārs Gulbis in 1994 - 1995. Already in 1999 I asked the Prosecutor General to verify a version where the shares were not obtained from Ainārs Gulbis but bought from companies, who paid their debts to Ventspils City Council. This true version of the events was not investigated by the Prosecutors Office, the prosecutors objected to its investigation during the trial. The Court removed questions that were planned to be put to the witnesses from the trial and forbade me from give testimony in this respect arguing that it was a delaying tactics. The ruling in the part of accusation based on Article 219 of the Criminal Law about the failure to declare foreign company ownership is in direct contradiction with the ruling of the Senate of the Supreme Court in an analogous accusation in the case of “Latvenergo”.
In my case the court states in its judgement that the laundering of a criminally obtained property started on 10 February 1995, although the special law criminalising such behaviour did not come into effect until 1998. So, the law has a retrospective application against Lembergs. That, of course, is illegal. At the same time, one must bear in mind that the Minister of Justice Jānis Bordāns in his interview to BNN has breached Aivars Lemberg’s right to the presumption of innocence, when before the Court ruling was written and took effect, he unequivocally stated that Lembergs is guilty of the crimes incriminated to him. He said: “…currently Riga District Court has… in my opinion very justifiably applied the strictest security measure - incarceration”. The Minister repeatedly stressed that it was a “very balanced and justified decision” to put Lembergs in prison at that moment. Before the full judgement was even available and took effect the Minister of Justice already reported that it was well founded. How does he know if the judgement is not available? The Court is still writing it up. So, who wrote up the “correct” judgement? The person, who, not being part of the court himself, already new that it was going to be a “very balanced” judgement. This means the trial was just a façade. The Court carried out Minister of Justice order - to lock Lembergs up. In his turn a member of Latvian Government from the New Conservative party Gatis Eglītis stated on Latvian Television on 6 June: the fact “that Aivars Lembergs is in prison is to a large extent thanks to us”. So, members of the Government determine the sentence! These facts are incompatible with the concept of Latvian courts as objective, just and independent judiciary of Latvia as a democratic country. Formally but not in fact. The way the whole trial went clearly demonstrated that arguments by the defence will not be taken into consideration, will not be analysed, and will be ignored. And this is exactly what happened." (You can read the full interview here).