The appeal process of the Lembergs case begins with motions to recuse the court composition
Already before the first hearing in this case, the victim, millionaire Ainārs Gulbis, had already submitted a motion to recuse the presiding judge Sandra Amola, and at the beginning of the hearing, Aivars Lembergs also filed a motion to recuse the entire court composition.
During the hearing, it was revealed that the motion to recuse the court's composition had also been previously requested by Aivars Lembergs' defense attorney Māris Grudulis. This motion to recuse had already been filed when Judge Amola decided to hear the appeals in a written procedure and had appointed a different composition of the court than at present. On September 29 last year, Amola decided to hear the Lembergs case, and we quote, "in a written appeal procedure without the participation of the parties to the proceedings, with the following composition: Judge Sandra Amola, Judges Signe Kalniņa and Lauma Šteinerte".
In October, the designated court composition decided that the appeals would, however, be heard in a spoken manner. Then the President of the Riga Regional Court, Daiga Vilsone, using her powers, changed the composition of the court, reassigning Judge Lauma Šteinerte as a reserve judge and appointing Judge Valdis Vazdiķis to the court.
Accordingly, it can be concluded that Grudulis had filed a motion to recuse the composition of the court in October last year, but this motion was not accepted - all this had been done in writing before the first public hearing.
A 16-year-old decision comes to light
The victim, Ainārs Gulbis, based his motion to recuse on the fact that Judge Amola, as President of the City of Riga Northern District Court, had made a decision in this case in 2006. The provisions of the Criminal Procedure Law on the inadmissibility of conflict of interest in criminal proceedings state:
(4) A judge shall not participate in examination of a case if he or she:
1) has participated in pre-trial criminal proceedings or proceedings of court of first instance or appellate court in any status;
Prosecutor Aivis Zalužinskis expressed the opinion that this motion to recuse by Gulbis should not be accepted, because Judge Amola participated in the pre-trial investigation of the Lembergs case in more "organisational" matters.
On the other hand, Lembergs supported the motion to recuse Judge Amola by Gulbis, because if any doubts about the legality of the composition of the court were not removed now, it would give Gulbis the opportunity to lodge a cassation complaint in the future. A cassation will, of course, prolong the court proceedings, which have already lasted 13 years.
Several lawyers, expressing their opinion on Gulbis' motion to recuse the judge, also stressed that her participation in the pre-trial investigation of the case could be a real ground for cassation. Consequently, the court must very carefully prepare a convincing justification as to why Judge Amola should be allowed to participate in the trial in this case.
But the situation for which the victim Gulbis filed a motion to recuse illustrates quite vividly how "reasonable" the time limits of this criminal procedure are - Judge Amola made her decision in the Lembergs case already 16 years ago!
What Bordāns pointed out
Lembergs justified his motion to recuse the composition of the court yesterday on the grounds that on May 5 last year, the Minister of Justice expressed his opinion on the BNN portal that the conviction of Lembergs was justified, in effect saying that Lembergs was guilty. On May 5 last year, the reasoned judgement had not yet been drawn up (it was delivered one and a half months later, on June 22), so at that time no one could legally know on what grounds the conviction was based.
Lembergs argued that these statements of Bordāns could be perceived by the judges as instructions as to what the verdict in the Lembergs case should be, as the Minister of Justice has a wide influence on the career of the district and regional court judges. Bordāns has vividly demonstrated this by promoting the rapid career growth of the first instance judge in this case, Irīna Jansone - a few days before the verdict in the Lembergs case was read out, she was appointed chair of the Criminal Chamber of the Riga Regional Court.
A judge cannot give a fair trial when depending on the Minister's favor, Lembergs said.
In support of Lembergs' motion to recuse, lawyer Māris Grudulis analyzed the decisions of the Supreme Court Senate, which emphasized that a judge's conflict of interest (in this case, dependence on the favor of the Minister of Justice) need not be real. The grounds for recusing can also be provided if a "reasonable outside observer" has justified doubts about the judge's impartiality.
The Criminal Procedure Law also states that an official may not undertake to conduct a criminal proceeding "if conditions exist that justifiably give the person involved in the criminal proceedings a reason to allow for such interest".
Section 50. Inadmissibility of a Conflict of Interests in Criminal Proceedings
(1) An official shall not be allowed to undertake authorisation to conduct criminal proceedings if, by doing so, such person comes into a conflict of interests, that is, if the personal interests of such person do not coincide with the objective of criminal proceedings either directly or indirectly, or if conditions exist that justifiably give the person involved in the criminal proceedings a reason to allow for such interest.
But in the present case, there are a number of circumstances that give rise to the presumption that the court may not be impartial, given the statutory power of the Minister of Justice to influence the careers of judges. These include not only the specific statements made by Bordāns, but also the fact that for many years Bordāns has been a virtually implacable opponent of Lembergs in political battles, which is a well-known fact that can be proven by countless examples.
The court's decision on the motions to recuse the Judge and the composition of the court will be announced today.