The court of appeal in the Lembergs case announced yesterday its decision on the motion to recuse brought by Ainārs Gulbis against Judge Sandra Amola and the motion to recuse brought by Aivars Lembergs against the entire court composition - the court did not accept these motions.
As Neatkarīgā wrote, Gulbis justified his motion to recuse the judge on the grounds that in 2006 she had made a decision at the pre-trial investigation stage of this case - the decision is contained in the materials of the criminal case under trial. The Criminal Procedure Law states that such a situation cannot be allowed.
Lembergs, on the other hand, submitted the motion to recuse the court's composition because of the opinion expressed by the Minister of Justice, Jānis Bordāns, in May last year on the guilt of Lembergs and the justification of his detention. This opinion was expressed by Bordāns when only the summary judgment had been read out, but the reasoned judgment had not been drawn up, so the Minister of Justice could not legally know the reasons why Lembergs had been convicted on part of the charges. Moreover, the Minister of Justice could not have known on what grounds the court imposed the detention order on Lembergs, as the summary judgment gave no reasons whatsoever for the detention order.
With his publicly expressed opinion, Bordāns basically dictated to the court, including the court of appeal, what the verdict should be, and given the powers of the Minister of Justice to initiate disciplinary proceedings against judges and also to otherwise decide the fate of judges, the court cannot be impartial on such instructions from the Minister of Justice - Lembergs argued for the motion to recuse.
The defense lawyers, supporting the motion to recuse, also said that the opinion expressed by Bordāns could be seen as pressure on the court.
The court composition, on the other hand, argued rejecting the motion to recuse by saying that Bordāns had expressed a subjective opinion based on the operative part of the summary judgment.
Judges base their actions on the Bangalore Principles, of which judicial independence is the first principle. Respect for the Bangalore Principles also includes ensuring that a reasonable outside observer would have no doubts about the impartiality of the court. In the present case, the court's decision states that the views expressed by Bordāns do not give rise to any doubt as to the impartiality of the court in the eyes of an outside observer.
The Minister of Justice's powers to influence the careers of judges are also not as wide as the applicants claim. In particular, the Minister of Justice may indeed initiate disciplinary proceedings against a judge, but this initiation must be specifically justified. Moreover, the disciplinary proceedings themselves are examined by the Judicial Disciplinary Board, which does not contain the Minister of Justice.
The Judicial Council can influence the career of judges, but the Minister of Justice is only one of its 15 members. Judges are therefore sufficiently protected from the influence of the executive branch, represented by the Minister of Justice, the Court's decision states.
The court did not accept the motion to recuse Judge Amola, which was filed by the victim Ainārs Gulbis, because in 2006 she had made a decision in a pre-trial investigation in a case with a completely different number than the Lembergs case currently before the court. Moreover, in her decision, Amola - at that time the President of the Riga Northern District Court - did not assess the factual and legal circumstances of the Lembergs case, but only determined the jurisdiction to hear the application. Thus, the judge has no interest in the outcome of the case, nor does she doubt her own ability to judge impartially.
The court's decision states, inter alia, that Amola adopted her decision in February 2006, i.e., when the criminal proceedings in the Lembergs case had not been initiated. Unfortunately, the court was wrong on this point. There are different opinions on the date of the actual opening of the criminal proceedings (it is disputed whether 1999 or 2003, when many procedural steps were taken, should be considered as the date of the opening of the criminal proceedings), but the criminal proceedings in this case were formally opened as early as 2005.
At the end of the hearing, the request of Lembergs and his defense lawyers for a change of the security measure from detention to house arrest or bail was examined.
After hearing the views of the parties and questioning Lembergs about his financial situation, the court announced that it would make a decision on this request at its next hearing on Friday, February 4.