Aivars Lembergs begins his last word by stating human rights violations in the criminal proceedings
He emphasized that the last word speech had been prepared for about 30 court hearings, but the decision of the Court to limit the speech six times, allowing him to speak only four court hearings, created the need to substantially rework the prepared speech.
Who has to prove guilt?
As one of the most obvious violations of the right to a fair trial and the presumption of innocence, A. Lembergs mentioned the instructions given to him and his defense counsel by the chairman of the court Boriss Geimans on January 25, 2010. Namely, explaining the decision of why the judge does not allow A. Lembergs' lawyer Raimonds Krastiņš to ask some questions to the witness, B. Geimans instructed the lawyer to prove the innocence of his defendant.
"According to the law, the judge's instructions must be followed. The judge asked the lawyer to prove that these particular allegations were unfounded. This was a surprise to me, Krastiņš and my other defenders. We did not expect that us, not the prosecutors, would need to prove whether the allegations are well-founded. We have been trying to follow these instructions for 11 years, which has significantly complicated the work on defense. This required additional time for the examination of evidence, the examination of witnesses and the debates."
A. Lembergs emphasized that imposing on the defense the burden of proving the truth of the accusation was a violation of Article 6, Paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 48 of the European Charter of Fundamental Rights, Article 92 of the Latvian Constitution and the Directive of the European Parliament and of the Council of 16 March 2016.
"I do not have to prove that the accusation is unfounded. Guilt must be proven by the prosecution. Judge Boriss Geimans has acted illegally,” concluded A. Lembergs.
He mentioned the opinion given to him by the Faculty of Law of the University of Latvia regarding the illegality of the actions of the Riga Regional Court in this case. It concluded that "these human rights violations against Aivars Lembergs can no longer be avoided by the Latvian state."
Countless "Lembergs' Laws"
A. Lembergs reminded about the hastily made amendments to the Criminal Procedure Law, which allows the court to limit the duration of the debate speech and the last word. Until July last year, the Criminal Procedure Law strictly stipulated that the duration of the debate speech and the last word can not be limited.
"For the first time in 12 years, when I finally had the right to defend myself, my political opponents in the Saeima amended the law. As a result, my last word was also limited six times. The court did not explain why it shortened the last word. I do not rule out that after my last word is done, the Saeima will change the law back,” predicted A. Lembergs.
For more than 10 years, Neatkarīgā has repeatedly described the many amendments to the law specifically directed at the case of A. Lembergs. Neither jurisprudence specialists nor reasonable and neutral observers of the process doubted that they were directed specifically for A. Lembergs - these amendments to the laws were nicknamed "Lembergs' Laws" and have been so numerous over more than 10 years that it would be difficult to count them all.
At the last word, A. Lembergs suggested another radical amendment to the law. Namely, it would have been easier for the Minister of Justice Jānis Bordāns and his other political opponents not to torture him for twelve years in the courtroom and make many amendments to the law, but to reinstate the death penalty and punish him. However, as A. Lembergs pointed out, "they are not ready for that". The only thing J. Bordāns can do is condemn the judges for judgments that do not correspond to J. Bordāns' understanding of the rule of law, and “wait with great enthusiasm for my imprisonment. There will be very big applause for such retaliation against the oppositionary Lembergs. Two neighboring countries - Latvia and Russia. That is why I say: “Greetings to Navalny! Privet!”, A. Lembergs greeted.
Is there a right to a lawyer?
He recalled that his rights of defense had been violated, including by denying him the right to choose a lawyer. Already in 2007, when A. Lembergs was under house arrest, prosecutor Andis Mežsargs had compiled a list of lawyers with whom A. Lembergs may and with whom he may not communicate.
A. Lembergs also pointed to the illegal interrogation of two of his lawyers - Rudolfs Meroni and Gints Laiviņš-Laivenieks - and the use of their testimony in criminal proceedings. A. Lembergs reminded of the discriminatory attitude of the court at the moment when in the summer of 2019 the lawyer R. Krastiņš withdrew from the proceedings due to health problems and he had to look for a new lawyer. The court preferred a state-paid lawyer to Aivo Leimanis, chosen by A. Lembergs, who, unlike the state-paid lawyer, was partly familiar with the criminal case. "It took a lot of skill to get it all together and prepare a debate speech. The debate did not turn out as we had imagined. It had to be reworked because the time we had for them had been limited. For prosecutors, the debate was not limited. Thus, sadly, Article 92 of the Constitution of the Republic of Latvia does not apply to Aivars Lembergs, who on May 4, 1999, voted for Latvia's independence,” Lembergs concluded in his last word.
No money - no defender
He also mentioned the restriction of the rights of the defense in financial terms: “In December 2019, the FCMC instructed banks to stop executing my payment orders. The bank froze my funds and to this day I am not able to pay enough money to the lawyer Māris Grudulis. The FCMC, but practically the Latvian government, has forbidden me to make payments to my lawyers. The goal is - if I don't pay the defenders, they won't give a defense. However, the government failed to do so and I have lodged a complaint against the state with the European Court of Human Rights. Every citizen has the right to a basic bank account. I have been deprived of this right and this affects the defense in this process."
Absurd security measures
A. Lembergs analyzed the human rights violations in connection with the application of many security measures.
“In February 2008, the Kurzeme Regional Court imposed a unique security measure - I was banned from participating in rallies and demonstrations. There is no such security measure in the Criminal Procedure Law. In the summer of 2008, during the Latvian Song and Dance Festival, I asked permission to participate in the procession along Brīvības Street. I was allowed to participate, but I had to ask permission. Who could I complain to? No one, because the decision of the regional court stated that it could not be appealed.”
He also referred to the absurd and still valid security measure to meet with several natural persons: “Since 2007, /when the security measure was imposed/, several persons have died. The security measure is still valid. I can go to the cemetery in secret, but the very fact that the court does not review the security measure, which has been valid for 13 years, is a serious violation of human rights."
Among the absurd and still-valid prohibitions, he also mentioned the prohibition to perform the duties of the chairman of Ventspils City Council.
"I do not bear ill will to you, court, for it is harmful to live with grudges. Nor do I bear ill will to the prosecutors. All people are more or less weak and more or less temptable,” said A. Lembergs.
Everyone wants to interrogate in cafes
A. Lembergs said: "There is reason to believe that by initiating this criminal proceeding, prosecutors are fulfilling a political order and engaging in a conflict between business partners. Prosecutors involved in political processes cannot be objective."
As examples of the bias of prosecutors, A. Lembergs listed many violations of the law by interrogating witnesses outside the premises of prosecutor's offices and interrogating witnesses abroad without sending requests for legal aid to these countries. Several years ago Neatkarīgā wrote about the hotels and cafes where witnesses were interrogated, in the so-called Lembergs criminal case; witnesses were also questioned abroad and even in the law firm - this lawyer switched from defending A. Lembergs to being the legal representation of his procedural opponent, suddenly giving accusing testimonies against A. Lembergs.
"Prosecutors deliberately violated the law. Why wasn't I questioned in a cafe either? Was it /the questioning of witnesses outside the prosecutor's office/ the fear of risking because the conversation will be recorded? Maybe,” A. Lembergs expressed his guess.
A. Lembergs also called illegal the division of the initial criminal proceedings into several criminal proceedings in order to create an opportunity to conceal the evidence unfavorable to the accusation in the criminal proceedings submitted to the court, as well as to use the separated criminal proceedings for the application of a new security measure.
A. Lembergs emphasized that the application of a security measure - arrest - on March 14, 2007, based on his old private remarks and illegally intercepted telephone conversations with lawyer Ieva Ramiņa, was not legal.
In his speech, A. Lembergs explained how the prosecutors in December 2007 tried to force him to take responsibility for the seized property transferred to R. Meroni's custody a few days ago.
Reasonable time limit?
He also analyzed the issue of procedural time limits, recalling that the investigation against him had already been opened on May 24, 1999, and that the first request for legal aid had been sent to Switzerland on December 30, 1999. "Is this a reasonable time limit if the proceedings are opened in 1999 but the case is not referred to the court until 2008?" rhetorically asked A. Lembergs.
A. Lembergs also mentioned as significant illegality the amendment of the charge on June 16, 2016, i.e., 8 years after the commencement of the proceedings, at the moment when the evidence was examined and the witnesses were questioned.
In the continuation of the speech, A. Lembergs analyzed specific episodes of accusation, pointing to the committed illegalities in raising and maintaining them.
The court has allowed A. Lembergs to have the last word in three more court hearings.
Duty of a lawyer?
Among other things, Neatkarīgā found an audio recording of the above-mentioned court hearing on January 25, 2010, where judge B. Geimans instructed A. Lembergs' lawyer R. Krastiņš to prove the innocence of his defendant - as already stated, such actions of a judge are incompatible with observing the presumption of innocence.
The hearing was indeed one of the turning points when, following the active intervention of prosecutors in an aggressive tone, the composition of the court began to lose its impartiality.
At the above-mentioned court hearing held 11 years ago, lawyer R. Krastiņš interrogated the victim millionaire Valentīns Kokalis, former chief lawyer of the state company Ventspils nafta, later a member of the board of the state joint stock company Ventspils nafta.
He was also the co-owner of SIA Puses - a very large customer of SJSC Ventspils nafta, who received very large discounts from SJSC Ventspils nafta. According to the version of V. Kokalis and prosecutors, in 1993 A. Lembergs extorted V. Kokalis from the share capital of SIA Puses.
Lawyer R. Krastiņš tried to interrogate V. Kokalis, a former senior official of Ventspils nafta, about the $10 million debt of millionaire Ainārs Gulbis (at that time it was almost a fantastic amount) to Ventspils municipality and Ventspils nafta - the method of settling these debts is the beginning and basis against the allegations made against A. Lembergs.
Lawyer R. Krastiņš was especially interested in how a part of this debt - 4 million dollars - was covered with the information system VITA developed by A. Gulbis' company. Prosecutor Aivis Zalužinskis then jumped to his feet, asking the court to remove all questions about A. Gulbis' debts and especially about the information system VITA, because they "are not relevant to the case".
Following the opinion of Prosecutor A. Zalužinskis, the judge removed all, even unasked, questions about VITA. The defense was shocked.
The most important thing is that the prosecutor A. Zalužinskis talked a lot and for a long time in his debate speech both about A. Gulbis's debts and exactly about the VITA system - i.e., about issues that he had previously declared as "irrelevant to the case"!
Here is an excerpt from the hearing on 25 January 2010:
Lawyer Raimonds Krastiņš: I am very sorry, the court decided to prohibit or not allow me to ask questions related to VITA. Well, I respect it, so not about that. I would like to ask for a request to the court - if it is so, then not to continue the case today, but to continue tomorrow to allow me to refocus on issues and interviewing tactics. I will not hide, at the situation when, well, Mr Kokalis, at the situation when, unfortunately, it is impossible for me to implement today's plans. And the second case, purely organizationally, the court removed article 502 from the order, I understand those questions - removed as a topic. Tell me, how can I strengthen it? Can I submit all the questions I wanted to ask about VITA, or how do I set it? That it is important to me that I could not use them.
Judge Boriss Geimans: Well, I will try to describe our protest. Specific charges have been brought against Aivars Lembergs and the other accused, right. For example, for Aivars Lembergs - extortion of bribes, there, money laundering, officials, etc., etc. In principle, if I understand your position correctly, you are trying to prove that there was a conflict between Aivars Lembergs and other people, including Kokalis, Gulbis, etc., etc. This is my opinion, right, but, it seems to me that Kokalis also does not deny the fact that, well, the existence of such a conflict, right, and you will also have the opportunity to ask questions, similar questions to the victim Gulbis, for example, right. Has there been such a conflict in the past? But if there even was such a conflict, right, what does that have to do with the accusation made against Aivars Lembergs and the other accused? For example, if there was a transaction with this computerized system VITA, that is what you want to prove?
Judge: Who was right in this case, who was not right, what was the point of it, right, given the charge. For example, the extortion of "Puses" shares. You understand, right?
Judge: Well, in principle, if your questions can help, well, in your opinion, to refute certain allegations for your defendant, of course, we will allow such questions, but if you, you understand, it is my opinion again, if someone, say, some party has a claim - they turned to the police. Of course, there was such a conflict, but if they turned to the police with specific allegations, then certain allegations were made, right,
it's simple - you have to prove that those specific allegations are unfounded. Well, as far as I understand, your duty as a defender.
R.Krastiņš: Yes, I agree!