Appeal finds Aivars Lembergs' right to a fair trial has been violated
The court of appeal in the Lembergs case has found that the first instance court substantially violated Aivars Lembergs' right to a fair trial.
Finding this violation, the court of appeal granted Lembergs' request to allow the examination of the victim Ainārs Gulbis, as well as the witnesses Jūlijs Krūmiņš and Mārtiņš Kvēps.
The questioning of Ainārs Gulbis, who has been called the first Latvian millionaire and oligarch, is scheduled to start today.
Injustice was legally recognized
It should be recalled that the court of first instance allowed only the prosecutors to fully cross-examine the three important witnesses (and not only these three), and allowed the defense to only ask them a few questions. Aivars Lembergs, on the other hand, was not allowed to question these three gentlemen (and not only them) at all.
Now, before the trial commenced, the court of appeal has ruled that "the failure to respect the right of the accused to question the victim or witnesses constitutes a violation of the fundamental principle of criminal procedure enshrined in Section 15 of the Criminal Procedure Law".
But Section 15 of the Criminal Procedure Law speaks of the very, very foundations of the rule of law:
In particular, the court of appeal has recognized the obvious, that the criminal chambers headed by Judge Boris Geimans and then by Judge Irīna Jansone in the Lembergs case have ignored the fundamental principle of a fair trial at least in one aspect. The defense has tirelessly pointed to many other aspects, but these will have to be reached in the course of the proceedings.
Could have asked at least something
However, the court of appeal rejected Lembergs' request to cross-examine the witness Oļegs Stepanovs. The appellate court justified its decision by the fact that in the first instance court, both Lembergs and his counsel had had the opportunity to ask questions of Stepanovs.
The fact that the composition of the court of first instance, led of Judge Geimans, ensured that the victims, millionaires Ainārs Gulbis and Jūlijs Krūmiņš, were able to evade their criminal procedural obligation to give truthful testimony, has been written about in the media and will probably be written about again. It is significant that both Gulbis and Krūmiņš are clearly and demonstrably the main architects of the Lembergs criminal case, so there should (and maybe will?) be many questions to ask them!
By contrast, the significant events surrounding the interrogation of millionaire and then oligarch Oļegs Stepanovs in the Lembergs trial more than 10 years ago are hardly remembered even by those who have more or less followed this trial of the century.
However, these events are quite vividly described in Aivars Lembergs' book "Criminal Procedure as Revenge" (with the additional title "With Debt Recovery from SWH Riga" (Kriminālprocess kā atriebība ar parādu atprasīšanu no SWH Rīga)).
Given that the episode in question is one of the turning points in how the court of first instance became a blatantly unjust court in these criminal proceedings, we quote the relevant passage from this book in full. The passage will also show the atmosphere that prevailed during the interrogation of certain witnesses and the attitude of the court of first instance towards certain millionaires and oligarchs who were openly hostile to Aivars Lembergs during the relevant period, so the court should have assessed the veracity of their testimony from this perspective as well.
For example, the court even provided several interpreters for these oligarchs, even though Latvian citizens are supposedly supposed to know Latvian at a decent level.
| What does this have to do with ascertaining the truth? Criminal defense lawyers have not only the right but also the duty to find out the truth! How can a defense lawyer fulfil this duty to find out the truth if he has to agree with the other defendants and their lawyers on how long each will be allowed to ask questions? How can the truth be ascertained if the defense counsel is not allowed to cross-examine witnesses and examine evidence in accordance with the tactics developed by the defense counsel to ascertain that truth? The circumstances in which the [first instance] court handed down such a decision [restricting the right to a fair trial] are also significant enough. On September 27, 2011, the prosecutors began questioning the witness Oļegs Stepanovs. The prosecutors interrogated Stepanovs for 6 days, concluding the interrogation on November 7, 2011. Oļegs Stepanovs was at that time the de facto leader of a group of businessmen whom journalists called "Lembergs' opponents", while I call them jackals. My relationship with Stepanovs has been strained to the breaking point since 2006, when an internal audit of Latvian Shipping Company revealed that some $100 million had been stolen from Latvian Shipping Company, which was effectively run by Stepanovs. Latvian Shipping Company took this theft to both Latvian law enforcement authorities and the English High Court. It was Stepanovs who was the mastermind behind the "anti-Lembergs campaigns" that had been organized since 2006 (i.e. they started during the 9th Saeima election campaign and were later reinvigorated during both the next Saeima and municipal elections campaigns), because he had a lot of money (you had to spend the money from Latvian Shipping Company somewhere), indirectly owned the media, and had well-paid public relations specialists and lawyers in his employ. But it was in November 2011 that a very unfavorable turn took place in the English court proceedings against Stepanovs, because I was called as a witness. It was on November 7, 2011, that I applied to the Riga Regional Court to be allowed to testify at the trial in London. The Latvian police were also up in arms about the millions defrauded from Latvian Shipping Company - meaning, Stepanovs was at that time a witness who was openly hostile to me, and whose objective questioning (i.e. one that had not been specifically prepared to support the prosecution from the outset) could indeed bring us closer to the truth. However, the objective cross-examination of Stepanovs in court was actively obstructed by the prosecutors, who referred to him as "honorable witness". Then the court itself intervened, teaching Stepanovs the "correct" way to testify, even though Stepanovs' lawyer was present during the trial. I was even allowed to ask Stepanovs a few questions at first, which was very, very rare in these proceedings in general. With the questions I asked, I tried to find out why there arose hatred between us in the second half of 2006. But then the court suddenly stopped the examination of Stepanovs, which had been started by the defense, and announced its decision to limit the time of examination of witnesses. This episode from the hearing on November 7, 2011, is so vivid that it is worth quoting a slightly longer extract from it. Aivars Lembergs: Well, you have a duty to testify about what you know. Oļegs Stepanovs: Да, конечно. Interpreter1: Yes, of course! Lembergs: So I would ask you, since this is the situation - you are the witness, I am the accused - it would be important to know. Stepanovs: Конкретизируйте ваш вопрос, я постараюсь ответить. Interpreter1: Specify your question, I will try to answer. Lembergs: So I am asking: what was the reason for our conflict, which you said originated in 2006? Interpreter2, translating to Russian: С чем был связан наш конфликт, как вы сказали, который образовался в 2006 году? Stepanovs: Я полагаю, что я не могу сейчас об этом говорить по одной простой причине, что я не смогу предоставить доказательства, а по сему - это будет воспринято вами как клевета. Interpreter1: I think that I cannot talk about it now because I cannot provide any evidence, because you will be able to perceive it as slander, that I am bad-mouthing you. Lembergs: I give you permission to talk here and bad-mouth me without any problems. Stepanovs: Спасибо, только я себе такого не позволяю. Interpreter1: Thank you, but I will not allow myself to do that. Lembergs: Was it connected with the administration of any companies? Interpreter2: Былo ли это связанo с управлениеm компании? Stepanovs: Да нет, речь идет о том, какие методы использовали люди, которые были лояльны к вам, для того, чтобы... Interpreter1: No, it's about what methods were used... Stepanovs: ...поставить меня, так сказать, на место. Interpreter1: ...used by those people who were loyal to you in order to put me in my place. Lembergs: Who are these people? Stepanovs: Я поскольку не могу дать по этому поводу полных доказательств, я об этом говорить не буду. Это может затрагивать интересы людей __. Interpreter1: Since in this matter... Stepanovs' lawyer Saulvedis Vārpiņš: Your Honor! Interpreter1: ...there is no evidence, I will not say anything... Judge Boriss Geimans: Yes, please, Mr Vārpiņš! Lembergs: We should finish translating, though! Geimans: Yes, sorry! Interpreter1: Since I have no evidence, I will not say anything. Vārpiņš: Your Honor, I would like to ask, however, that the questions about the nature of the conflict be removed. In this case, the situation is that - of course, I understand Mr Lembergs' interests, because he is the accused, as he said, and my client is only a witness. But in this case, there are some criminal cases in which my represented has the status of a suspect. And in fact these cases also stem - these cases have stemmed from this conflict. So there have been some applications - this is also, I believe, related to this conflict that has arisen here on both sides - and so in those cases, Stepanovs Oļegs has the status of a suspect; and so he has this right not to testify in relation to those matters that may affect him in those cases that are against him. Geimans: If the person you represent wishes to exercise his right not to incriminate himself... Vārpiņš: Yes! Geimans: ...he can just say so! Vārpiņš: Yes, well... Geimans: Do you understand, Mr Stepanovs? Vārpiņš: Yes, I understand! Stepanovs: Именно это я имею в виду. Interpreter1: That is exactly what I meant. Judge Boriss Geimans, addressing Stepanovs: Just say specifically next time that you want to exercise the right not to incriminate yourself. Geimans to the participants of the case: So, I think we will stop the questioning of Mr Stepanovs for today. I want to announce one court decision. So, the trial chamber decided to respect the principle of reasonable time for the examination of a criminal case, decided to give the defense and the prosecution the same time for asking questions as was used by the State Prosecution during the examination of the witness Stepanovs, i.e. a total of six hearings. Today's hearing is not included. Well, in our view, this means that both the defense and the prosecution have to agree on how long each of them will be able to ask questions of the witness Stepanovs. So, after 6 hearings, witness Stepanovs will be released and the next witness will be called to testify. If you can get there sooner, that is very good. There you have it. The lawyers tried to argue that the court's decision is not lawful; thus, the defense is forced to adapt to the prosecution's tactics in questioning each particular witness. That is to say, it may be that the prosecution wants to ask only a few questions of a particular witness, or does not even want to ask any questions, even though that witness is of particular importance to the defense. Thus, the fact that the defense has the right to choose other tactics, regardless of the extent to which a particular witness may be of interest to the prosecution, is not respected. All in vain. The court did not change its decision and regularly reminded of it afterwards. |