When assessing the charge against Aivars Lembergs of extorting a bribe - shares in SIA LatTransnafta owned by SIA Man-Tess in early 1995 - the court should base itself on documents that truly confirm or deny the ownership of such shares in SIA Man-Tess at that time, lawyer Agris Eglītis, representative of SIA Pars Termināls (the current name of SIA Man-Tess) stressed to the court of appeal in the Lembergs case.
The episode of the alleged extortion of shares in SIA LatTransnafta in early 1995 is basically the main and also the most serious episode in the accusation against Aivars Lembergs. The businessman Ansis Sormulis is also absurdly implicated.
The judgment of the court of first instance rewrites word for word the prosecutors' accusation, thus completely ignoring both the glaring contradictions in the very construction of the accusation and the categorical denials of several alleged extortionate shareholders, and the facts as to what the real motivation might be for three of the dozens of persons involved in the LatTransnafta project (millionaires Ainārs Gulbis, Jūlijs Krūmiņš and Vladimirs Krastiņš) to claim that the extortion did take place. Moreover, the court also ignored the fact, which raises reasonable doubt, that the version of the extortion of the shares only emerged in 2008, after Lembergs had already served several months in prison.
For example, the court of first instance completely ignored such inconsistencies in the prosecution's construction as the prosecutor recognizing some members of SIA LatTransnafta as victims while not even offering such a possibility to others; the prosecutor designating Ainārs Gulbis as a natural person as a victim in this criminal proceeding, while Gulbis has never been a member of SIA LatTransnafta, while his ownership of a legal entity, which was indeed a member of SIA LatTransnafta, has not been proven in any way - according to the materials of the criminal case, this legal entity belongs to Aivars Lembergs, etc.
The court completely ignored the categorical denial of the extortion by several allegedly extorted persons (former owners and liquidator of Banka Baltija, current owners of SIA Man-Tess, management of JSC Ventspils nafta).
The court also completely ignored the facts of the multi-million civil claims and conflicts with Lembergs of the three aforementioned millionaires, who are the only ones to testify that the extortion took place, although material claims are usually recognized as a compelling motive for more than just slander.
Even before the verdict was handed down, during the 12-year-long first instance court proceedings, the court ignored three whole requests by SIA Man-Tess (which changed its name to SIA T2 Termināls, then SIA Pars Termināls) to exempt the company from victim status in the Lembergs criminal case, because there was in fact no suffering at all. The arguments put forward by the company's representatives were also ignored, as was the evidence they provided that there was no suffering (material damage).
Thus, the representative of the victim, Eglītis, now emphasized to the court of appeal that he still fully supported the request to remove the company from this status and listed the evidence that the court of first instance had ignored in reaching its unjustified conviction.
"Admittedly, it is not a common situation for a victim to waive its status in a judicial inquiry and, consequently, no examples can be found in the Supreme Court's case law. However, the legal literature does have it. Kristīne Strada-Rozenberga, [former prosecutor, dean of the Faculty of Law of the University of Latvia, professor] has pointed out that every person has the right to decide whether or not to be a victim, as well as the right - I underline this word - to refuse this status," Eglītis explained in court.
However, the victim's wish to renounce victim status is often not recognized. In the Lembergs trial, prosecutor Aivis Zalužinskis also argued that once a person has been recognized as a victim, he or she cannot renounce that status. "This is exactly the thesis of prosecutor Zalužinskis, and the court, which did not have its own opinion, as can be seen from the minutes of the court hearings - the court, under the leadership of judge [Boriss] Geimans, agreed with this opinion and stated that the law does not provide for this, and the court rejected the request [to revoke the victim status]," Eglītis said. In his opinion, "in any case, the court should have decided to revoke the victim status because it is the victim's right. It is only logical that a victim cannot be forced to be a victim in proceedings, all the more so if the victim considers that, not only for formal reasons but also in substance, he has no grounds to be a victim in criminal proceedings: because no material damage - the reduction of his property - has occurred."
Eglītis said that the court of appeal should correct this mistake made by the court of first instance and, "without ruling on the merits of the case, the court may already now decide to revoke the victim status of SIA Pars Termināls, regardless of the reasoning that the court of appeal will give for the evidence in the case file that speaks of the alleged extortion of a bribe from SIA Pars Termināls ".
He gave a detailed assessment of whether the victim status in the pre-trial criminal proceedings had been justified and whether the victim had grounds to be a victim on the merits. He invited the court to focus on three circumstances: whether a criminal offence has been committed; whether a particular person has been harmed and, if so, what kind of harm; and whether the person wishes to acquire victim status.
Eglītis drew the court's attention to the opinions of the sworn auditor on the examination of documents and the auditor's report on the participation of SIA Man-Tess in the capital of SIA LatTransnafta and the contributions made to the capital of SIA LatTransnafta in the period from May 25, 1994, attached to the criminal case. He asked the court to examine the documents in the books of SIA Man-Tess and the evidence in the criminal case as to whether SIA Man-Tess had indeed become a member of SIA LatTransnafta as early as 1994; whether the rights of a member of SIA LatTransnafta had indeed been acquired by paying into the share capital the amount indicated in the report of May 25, 1994. According to the lawyer, SIA Man-Tess (now SIA Pars Termināls) has no bank transfer documents showing that such an amount was actually paid into the capital of SIA LatTransnafta. The auditors have checked all the bank accounts of SIA Man-Tess existing at the time. "The only person who could have had anything to do with this transfer is the then sole owner of Man-Tess, Jūlijs Krūmiņš, who admitted in the court of first instance that no such transfer had taken place, because he had acquired the shares in SIA Man-Tess in a completely different way - he or SIA Man-Tess had property liabilities with SWH, represented by Ainārs Gulbis, to which 500,000 lats had been lent, and the [SIA LatTransnafta] shares in SWH were allocated in discharge of those debts. He therefore acknowledges that no increase in shares has taken place in this way - there has been no bank payment. There was a share purchase agreement, cancelling its obligations to SWH or to Ainārs Gulbis, who transferred his shares in SIA LatTransnafta. However, this does not correspond to reality, as it is not reflected in the documents," explained Eglītis.
According to him, "it cannot be proved on the basis of evidence that this or that company was or was not a shareholder in another company. It can only be proved by documents that are not in the case file, or even exist at all, because there were none, as confirmed in court by the [then] owner of SIA Man-Tess himself, Jūlijs Krūmiņš." As Eglītis pointed out, "the court of first instance did not even use the testimony of Krūmiņš to prove that the extortion had indeed taken place, because it apparently realized that such testimony could not be used as a basis for proof."
As the lawyer explained, SIA Pars Termināls has a compelling argument for why it should be exempted from victim status: if SIA Man-Tess did not increase the share capital of SIA LatTransnafta in 1994, then there was no object itself that could have been extorted or disposed of in any other way in 1995.
"According to legal theory, impossible things cannot be the subject of a transaction and such a transaction is void," said Eglītis.
He recalled that the court of first instance "did not assess these arguments at all in its judgment and did not take into account this argument made by the victim in the court of first instance. This is contrary to the impartiality of criminal proceedings and the right to a fair trial."
It should be recalled that the quality of the investigation in this criminal case is also evidenced by the rather serious consideration during the trial as to what the status of the prosecutor of the former owner of SIA Man-Tess, Jūlijs Krūmiņš, is in the criminal proceedings. In some prosecutors' documents he is mentioned as a victim, in others - as a witness, in still others - as a representative of the victim SIA Man-Tess. These contradictions were also pointed out by lawyer Eglītis.
The position of the [first instance] "court was inconsistent, because the court did not reprimand the prosecutor who started questioning Jūlijs Krūmiņš as a victim and not as a witness, because at that moment he was no longer a representative of SIA Man-Tess. The prosecutor asked Krūmiņš whether he was maintaining a compensation claim against Lembergs. The court did not remove the question. Jūlijs Krūmiņš replies, "Yes, I maintain such a claim, and one of the claims I have..." It is further revealed that Krūmiņš is not claiming compensation for any reduction in the value of his shares, but is complaining in a general way that his attempt to participate in the privatization of Ventspils Nafta was unsuccessful, which is not at all at issue in this court case."
At the end of his speech, Eglītis asked the court to annul the decision to appoint SIA Man-Tess as a victim at this stage of the proceedings and to "take into account the above circumstances, which prove beyond any doubt that the fact of the extortion of the shares could not have taken place at all".
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