The court of appeal in the Lembergs case has granted the defense's request, finally allowing now-former Ventspils mayor Aivars Lembergs to ask some questions to Ainārs Gulbis, who has been granted victim status by the prosecutors in this case.
Gulbis, who was known as Latvia's first millionaire in the early 1990s and was the boss of the all-powerful SWH empire, is one of the "architects" of the Lembergs case, which he did not hide during the appeal court hearing.
During the first instance trial (as we know, the first instance process lasted 12 years), everything was done to ensure that the prosecution could ask Gulbis all the questions it needed to ask, while the defense could not cross-examine Gulbis. The defense was only able to ask Gulbis a few questions, to which he did not give any substantive answers anyway, but more accused them of not asking the questions correctly.
After some distress in conducting such an examination, the court allowed Gulbis to go to recover his health and he did not appear in the courtroom again. In August 2015, it was even formally decided to bring Gulbis under duress to give evidence in the courtroom. However, the police officers assigned to bring Gulbis could not find him.
Instead, the yellow press found him in Tenerife in the Canary Islands, where he had begun a passionate love affair with a former model. The yellow press said that the young woman had left her husband for Gulbis and had gone to Tenerife with their seven children (for more details, see here, for example). For some unknown reason, the yellow press then stopped caring how this crazy story (a family of seven children broken up!) had ended.
Unlike the Latvian police, who could not find Gulbis, sports journalists also regularly found him attending prestigious tennis competitions in various parts of the world.
Gulbis did not appear in court, but sent written testimony prepared by his legal aid provider.
The decision of the first instance to read these written statements prepared by the lawyers appeared to be a gross injustice and a violation of the right to a fair trial. The defense urged the court of the first instance to ensure that Gulbis appeared to give oral evidence (see here, for example), as "live" evidence in open court is crucial for ascertaining the truth, for example in recording contradictions and assessing them.
However, all the efforts of the defense were in vain - the court read out the written evidence prepared by Gulbis' lawyers, which thus became official evidence in the criminal proceedings. Anyone who has dealt with criminal proceedings in any capacity will understand how important this aspect is in assessing the credibility or falsity of the victim's testimony (in this case, basically the main testimony!).
But Gulbis had testified before the Prosecutor General's Office in this criminal case many times during the pre-trial investigation (from 1999 to 2008), and it is not surprising that he had made up several, even radically contradictory, versions of the same events. On one very important issue, his testimony contained as many as six (!) different versions, so of course his interrogation in open oral proceedings in the court of the first instance (rather than by sympathetic prosecutors who can write up the interrogation report as they need to) was very important. However, the court of the first instance not only allowed Gulbis to avoid being properly cross-examined by the defense, but also completely ignored all these contradictions and differing versions of Gulbis in the transcript of the prosecution judgment, thus effectively declaring all six contradictory versions to be true...
However, the court of appeal has now ruled that the first instance court violated the right to a fair trial by not allowing Lembergs to ask Gulbis even a single question.
Gulbis was required to comply with his criminal procedural obligation to give evidence in court, and this time Gulbis did not shirk.
Why? Gulbis is the only victim to have lodged an appeal asking for a higher compensation award than given by the first instance court. The court of the first instance awarded him compensation of 22,156 euros and 96 cents, but he wants more than 10 million euros. Of course, if Gulbis continued to avoid giving evidence in open court, he would no longer be able to explain on what basis he still wants the millions, if he does not want to comply with his criminal obligations.
The court of appeal's decision to question Gulbis allowed former friends (early 1990s) and later implacable enemies (mid-1990s to present) Ainārs Gulbis and Aivars Lembergs, if not to meet, at least to talk remotely a little.
The interrogation was extremely difficult, as Gulbis constantly behaved defiantly and repeated that he had been answering these questions for many years. He had first testified against Lembergs before the prosecutor in 1996, then in 1999 (23 years ago!) and many times after that. In 1996, there was no right Prosecutor General to hear these complaints, so the version they contained has been lost.
But at the appeal hearing in 2022, Gulbis's typical answers to questions were: "All the answers are in the file"; "You can answer that question yourself", etc.
Among other things, on the question that Gulbis thought was the most important (the existence or non-existence of a four million guarantee from Rīgas Apvienotā Baltijas banka to Ventspils nafta), and which he tried to talk about when answering any questions, Gulbis even created a seventh different version! For example, he testified that this guarantee was "used by the whole… I will call it a gang, to take away my shares in Krājbanka" during the merger of Rīgas Apvienotā Baltijas banka and Krājbanka (i.e. the first stage of privatization of Krājbanka). So it is not Lembergs who has extorted the shares, but the "gang". What Gulbis means by a gang can be found below.
At the start of Gulbis' cross-examination, Lembergs' lawyer Irina Kauke pointed out that, by failing to guarantee the defendants the right to cross-examine witnesses, the court of the first instance had committed a fundamental infringement that would in any event lead to the first instance judgment being revoked. The court of appeal has already found an infringement. However, this "infringement cannot be remedied by the appellate court itself. The infringement committed by the court of the first instance is irreparable". The interrogation of Gulbis at appeal will not remedy the irregularities of the court of the first instance.
Aivars Lembergs recalled the procedure laid down in the Criminal Procedure Law that "the victim is questioned at the outset and his testimony is checked against the testimony of other witnesses. Here it turns out that the victim is questioned last. Absurd from the point of view of due process".
He stressed that it would be fair if the criminal proceedings were restored to the first instance. But on the other hand, it would be tragic, "because I won't live another 30 years".
It was not easy for the court to control the process. However, it seems that the court succeeded.
The following examples illustrate Gulbis' behavior during the interrogation.
Lembergs asked in what context Māris Forsts introduced Gulbis to Lembergs in 1991. Gulbis replied: "Everything that happens in the world happens sexually. Everything! I have nothing more to say!"
Lembergs recalled that in 1995 an agreement was reached between the warring groups, once led by Lembergs and Gulbis, to settle all multi-million debts and put an end to the conflicts. Gulbis testified that the agreement was not reached and signed by him, but by his "partners and employees". "And they said to me at the time: 'Ainārs, but do you understand that you will never be able to ask anything from Lembergs again?' I said 'Yes! I can't in civil court, but I can in criminal court.' And that's where we are. That's it," Gulbis was frank about the motives behind the criminal proceedings.
The atmosphere during the interrogation of the victim seems to be best captured by the example we present in full.
Lembergs: "In your testimony during the pre-trial investigation, you used the term 'Ventspils gang'. What did you mean by that?"
Gulbis: "The bandit formation you have set up, that is to say, more or less seven people. How you decided to up with the idea, respectively, of confronting, as I say, 'the Rigans'."
Lembergs: "And who were the 'the Rigans'?"
Gulbis: "First, remind me who were "the Ventspilians", then?"
Lembergs: "Yes. Seven in total, and you said they were some kind of gangsters."
Gulbis: "Yes, I have mentioned all of that exactly in all my testimonies."
Lembergs: "Who are the bandits - can you tell me? Seven..."
Gulbis: "Well, first of all - you, without a doubt."
Lembergs: "Without a doubt."
Gulbis: "You ran the whole company."
Lembergs: "Sure, and I led the invasion of Ukraine too..."
Judge Sandra Amola: "All right, stop it, stop it, please!"
Lembergs: "Yes, please."
Judge Amola: "Both of you! Question - answer!"
Lembergs: "I apologise, Your Honor. Yes, please." [Addressing Gulbis] "Can you answer the question or not?"
Gulbis: "What question?"
Judge Amola: "Seven persons! You did not answer."
Gulbis: "About seven persons, yes, that you had set up, and the gang included you, Blažēvics, Skoks, yes, Berķis was not in that gang then. It was away, so he probably joined then. Who else was there? Well, like... (thinks)."
Lembergs: "Was Kokalis?"
Gulbis: "Yes, of course! Well, you know all this better than me! You remind me, and I will confirm it for you! It will be easier for the court."
Judge Amola: "Ainārs Gulbis! When we will question the accused, Lembergs, then you will have the right to ask him questions. Now is not the time to ask him questions!"
Gulbis. "I thought I wasn't. I was simply clarifying my answer."
Lembergs: "Yes. So among the seven that you mentioned, was Ševcovs?"
Gulbis: "No!"
Lembergs: "Stepanovs?"
Gulbis: "Of course, he was."
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