Ombudsman: Riga Regional Court has violated Aivars Lembergs' right to liberty

Ombudsman Juris Jansons has detected a gross violation of the human right to liberty in the imposition of the most severe security measure – arrest – on Ventspils Mayor Aivars Lembergs without justification and motivation.

The 15-page opinion of the Ombudsman found a violation of the right to liberty committed by the Riga Regional Court and indicated that A. Lembergs has the right to file a complaint with the European Court of Human Rights (ECHR) even before the conclusion of criminal proceedings in appellate and cassation courts.

Sent to prison without justification

The opinion analyzes the fact that the court in the abbreviated judgment did not provide reasoning on why A. Lembergs was arrested.

Although the Criminal Procedure Law does not oblige the court to give reasoning on the decision of the applied security measure in the abbreviated judgment, the Ombudsman considers that the decision must be lawful - therefore also with reasoning - when applying the most severe security measure from the context of respect for human rights: "It is not disputed in the review case that the arrest was decided by a competent court based on law. However, in the Ombudsman's opinion, it is necessary to examine in turn whether the court has duly substantiated the application of arrest in its judgment.”

The Ombudsman emphasized that, in accordance with the ECHR, "arbitrary arrest cannot be compatible with Article 5 Paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as the concept of 'arbitrary' in this context goes beyond incompatibility with national law. As a result, deprivation of liberty which is lawful under national law may still be arbitrary and thus contrary to the Convention. The requirement that arrest must not be arbitrary implies the need for proportionality between the grounds for arrest and the arrest in question."

The Ombudsman found that "in this particular case A. Lembergs' arrest was not justified in any way in the abbreviated judgment of the court".

"In order for a person to be sentenced by a court judgment to the most severe security measure, arrest, it is necessary to establish circumstances which give reason to believe that the person may interfere with or avoid litigation or enforcement of a judgment. The Supreme Court has also recognized that for a person to be arrested for committing a crime for which the law provides for a custodial sentence, it is necessary not only to establish the basis for the application of a security measure in accordance with Section 241, Paragraph two of the CPL, but the court must also substantiate that the application of another precautionary measure cannot ensure that the person will not commit a new criminal offense, obstruct or evade the execution of the pre-trial criminal proceedings, court or judgment. At the same time, the fact that a person has been convicted of a serious or particularly serious crime does not automatically mean the immediate arrest of the person, but is an additional ground that can serve as an argument for the application of arrest. It is a court right, not an obligation to detain.

The assessment of such circumstances is not included in the abbreviated judgment of the court,” the Ombudsman's opinion states.

Spitting on human rights

Summarizing the decisions of the ECHR and the Supreme Court of Latvia, as well as analyzing the abbreviated judgment of the Riga Regional Court, the Ombudsman has established the following: “Considering that the Riga Regional Court has not provided a complete statement of reasons and analysis on why in this case imprisonment, rather than any other less restrictive security measure of a person's rights be preserved or determined, the Ombudsman finds a violation of Aivars Lembergs' right to liberty as specified in Article 94 of the Constitution and Article 5 Paragraph 1 of the Convention.”

Ticket to ECHR

In his opinion, the Ombudsman explains that A. Lembergs now has the right to file a complaint with the ECHR even before the conclusion of the criminal proceedings: "The Court did not include any statement of reasons in its abbreviated judgment, thus also depriving A. Lembergs of the right to be fully informed of the circumstances which led to his arrest. To recognize that the supervision provided for in Article 5 Paragraph 4 of the Convention is already included in the judgment requires a statement of reasons from the court. This was not the case. Considering the above circumstances, the Ombudsman finds a violation of A. Lembergs' right to liberty in the context of Article 94 of the Constitution and Article 5 Paragraph 4 of the Convention. I would like to inform you that at present, after the full court judgment, A. Lembergs has the right to file an appeal, among other things, expressing objections to the imprisonment applied. If any of the conditions referred to in Section 281, Paragraph five of the CPL are met, the judge of the appellate court will assess A. Lembergs' application for revocation or amendment of the applied arrest. At the same time, if the above criteria are not met, A. Lembergs will be able to consider filing a complaint with the ECHR."

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