Appeal proceedings in the Lembergs case are about to start

The appeal proceedings in the Lembergs case are scheduled to start tomorrow.

The first hearing in this trial was due to take place a week ago but was postponed due to the incapacity of the judge.

As Neatkarīgā already wrote, the judges of the Lembergs case at the Riga Regional Court are Sandra Amola, Signe Kalniņa and Valdis Vazdiķis, while Lauma Šteinerte has been appointed as a reserve judge.

If the court of appeal cannot remedy

One of the first questions that this panel will have to decide is whether the case should be sent back to the court of first instance for examination de novo.

As is known, requests for sending back are made in almost all appeal requests. Aivars Lembergs even asked for the first hearing of the appeal to be scheduled as soon as possible so that the case would not be unduly delayed if the matter was not decided immediately. As can be seen from the developments, the court of appeal did not take this request into account.

The requests for the case to be referred back to the court of first instance were based on the fact that the judgment of the court of first instance had had breaches of the Criminal Procedure Law "which necessarily lead to the judgment being revoked and which cannot be remedied on appeal without prejudice to the rights of the defense."

Such a procedure is laid down in Section 566 of the Criminal Procedure Law "Competence of an Appellate Court in the Sending of a Criminal Case to a Court of First Instance for Examination De novo". It states: "If, in examination of a case, an appellate court determines violations of this Law that bring about the revocation of the judgment or another significant violation of this Law, which it cannot eliminate by itself without infringing the right to defence of the accused, such court shall, at any time of trial of the case by having heard opinions of the participants to the case, take a decision to revoke the judgment of a court of first instance completely or in a part thereof, and to send the case to a court of first instance for examination de novo."

Copied accusation

One of the arguments for sending the case back to the court of first instance is that the judgment of the court of first instance does not contain a description of the offence that the court itself had drawn up. Specifically,

"the descriptive part of the judgment of the court of first instance copies the accusation,

rather than giving a description of the offence as found by the court. The judgment of the court does not comply with the requirements of Section 527(1) of the Criminal Procedure Law."

However, the decisions of the Senate of the Supreme Court and "case law have rightly recognized that in such cases the judgment of the court of first instance must be revoked and the case must be sent back to the court of first instance for examination de novo."

The court of first instance, on the other hand, took very little account of the defense arguments and, accordingly, made no attempt to rebut them in its judgment.

The appeal request concludes that "the judgment of the court of first instance is clearly unlawful and illegitimate because it is a copy of the accusation."

It should be recalled that Neatkarīgā has also repeatedly shown with examples that the court did not write the first instance judgment itself, but in several sections simply copied the accusation word for word - with all the grammatical and factual errors, without removing even obvious nonsense and contradictions.

Decided without the President

The fact that a number of important procedural issues were decided by two judges at first instance - when the President of the Court was not present in the courtroom - has also been cited as an important ground for sending the case back to the court of first instance. At that time, the President of the Court in the proceedings described here was Judge Boris Geimans.

The law clearly and unambiguously sets out the functions of the presiding judge

- including that it is he and no one else who opens the hearing, that "the presiding judge shall announce which persons are present in this case", etc. However, when Judge B. Geimans fell ill, his functions were assumed by Judge Irīna Jansone. Thus, "Judge Jansone, without being authorized to do so, performed procedural acts which are the exclusive function of the President of the Court," the appeal request concludes.

At the above-mentioned hearings, the issue of the requests submitted by A. Lembergs was decided, the opinion of the State Prosecutor was heard, and the court, composed of two judges, prohibited A. Lembergs from using lawyer Aivo Leimanis for his defense, but imposed the State-funded defense counsel Genādijs Ivankins.

According to the appeal, the case was thus heard by an "unlawful composition" at these hearings. The Criminal Procedure Law explicitly states that a hearing "in an unlawful composition" constitutes a "fundamental violation" which "necessarily leads to the revocation of the court's decision".

Security measures to be decided

At the beginning of the appeal proceedings, it will also be necessary to rule on the lawfulness of the security measure imposed on Aivars Lembergs - arrest.

As is known, on February 22 last year, the summary judgment was read out, which, among other things, changed the security measure for Aivars Lembergs to an arrest.

The summary judgment gave absolutely no reason why this most restrictive measure should be applied, even though a less restrictive measure had been used for the entire 12 years of the proceedings at first instance.

For four months - the full judgment was given to the parties on June 22, 2021 - no justification for detention was known at all. The full judgment also made only assumptions - roughly that Lembergs should be imprisoned because he might evade the execution of the judgement.

In contrast, Article 5 of the European Convention on Human Rights provides for the right of the arrested person to be informed immediately of the grounds for his arrest. This requirement of the Convention is also integrated in one way or another into the Latvian Constitution and laws.

A human rights violation has already been established in this case by the Latvian Ombudsman. His conclusion states: "Taking into account the fact that the Riga Regional Court in its summary judgment has not provided any justification and analysis as to why detention should be applied in the given case instead of maintaining or imposing some other less restrictive security measure, the Ombudsman finds a violation of Aivars Lembergs' right to liberty under the Constitution and Article 5 of the Convention."

This is only one of the reasons why Lembergs' security measure will be decided at the first hearings of the court of appeal.