What resources are needed to analyze the judgment in the Lembergs case

The constitutional complaint on the time-limits for the preparation of an appeal, submitted by Aivars Lembergs to the Constitutional Court and on which the Constitutional Court has already initiated proceedings, contains, among other things, precise numbers describing the Lembergs trial, which is a case of unprecedented proportions even on a European scale.
24.11.2021. Uldis Dreiblats, Ritums Rozenbergs
 
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The constitutional complaint also briefly describes the judgment that was handed down in this case.

It should be recalled that Lembergs, while in Riga Central Prison, asked his lawyers to prepare three constitutional complaints. The Constitutional Court has already initiated proceedings in respect of all three complaints.

When 20 days are not enough

In the mentioned complaint, A. Lembergs, drawing on his own experience, argues against the time limit for lodging an appeal, which is set in the Criminal Procedure Law at 10 days or, in particularly difficult cases, at 20 days.

However, there are cases where such a time limit for the preparation of an appeal is insufficient.

The Lembergs case is a prime example where even 20 days is insufficient time to prepare a quality appeal against a court judgment.

It should be recalled that the summary judgment in the Lembergs case was delivered on February 22 and that it took three judges about four months (i.e., until June 22) to write the full judgment.

The summary judgment was mostly a re-written (sometimes even blatantly copied) accusation, while the full judgment was mostly a copied accusation + a re-written prosecutors' accusation speech. There was very little analysis of the defense arguments - basically, just to have it formally there.

Although the defense had to analyze a previously unheard of voluminous judgment - i.e. the work of three judges on 1900 pages - and subject this work of the judges to reasoned criticism, the defense managed it within the statutory 20 days.

Perhaps this almost unbelievable mission was helped by the fact that the court had contributed almost nothing of its own - mostly just copying the prosecutors' writings.

But, as the submission to the Constitutional Court described here points out, "the copying of the State's accusation into a judgment does not require significant time and resources, but the defense does in order to refute it".

That is why this constitutional complaint has been lodged concerning the time limits for the preparation of the appeal.

Important dates

The application to the Constitutional Court recalls that the criminal case against Aivars Lembergs, Anrijs Lembergs and Ansis Sormulis was heard by the Chamber of the Criminal Court of the Riga Regional Court as a first instance court from August 2008, i.e., for more than 12 years.

The criminal proceedings in this case were officially initiated on October 3, 2005, i.e., more than 16 years ago. The application also states that "investigative measures were initiated as early as 1999", i.e., more than 21 years ago.

It should be recalled that in May 1999, Ainārs Šlesers, who had been dismissed from the post of Minister of the Economy and who at that time had found common ground with Andris Šķēle, A. Lembergs' most influential political opponent at the time, filed a submission against A. Lembergs with the Prosecutor General's Office. The fingerprints of millionaire Ainārs Gulbis were clearly visible in A. Šlesers' submission to the Prosecutor General. At the time, A. Gulbis and A. Šķēle had common interests in the gas business. A. Šlesers' application then became the basis for the investigations referred to in the application, which were launched in May 1999.

All these dates and years are very important for assessing whether the criminal proceedings against A. Lembergs are already within reasonable time limits, even though the appeal proceedings have not yet even started.

Everyone can try to remember for themselves what they did and how they lived during the years mentioned here - 1999, 2005, 2008 - and then imagine what it is like to have to go to the prosecutor's office or to court on a regular basis for all these more than 20 years.

The application to the Constitutional Court states: "Basically, the criminal proceedings were initiated in May 1999 as a test, including a request by the public prosecutor for explanations, which were used as evidence by the public prosecutor to support the accusation in court. During this period, the prosecution also sent requests for legal assistance to other countries, received replies which were used to prove guilt, and received statements, submissions and evidence from witnesses and victims which were used to prove guilt. The total duration of the criminal proceedings since May 1999 is 249 months. Even from a formal point of view, since October 3, 2005, when a formal decision was taken to initiate criminal proceedings in accordance with the provisions of the new Criminal Procedure Law, the criminal proceedings have lasted 184 months."

791 hearings

The submission recalls that the criminal proceedings "are extremely voluminous, with more than 300 volumes of case files and 23 packages of material evidence. A total of 791 hearings have been held in the criminal proceedings: the first hearing was scheduled for February 16, 2009".

It is recalled that the composition of the court changed during the trial, as the institution of presiding judges was abolished by law and three professional judges began hearing the case on August 20, 2009 (17 hearings had been held before then), with a reserve judge also observing the proceedings.

The application states that since that date "772 hearings have taken place. Aivars Lembergs has not been unjustifiably late for any of them. For reasons related to the work of the court itself or the public prosecution, approximately 400 hearings have not taken place (according to the constitutional complainant's estimate). The criminal proceedings have also been the subject of a number of expert examinations. There are four victims in the criminal proceedings: three natural persons and one legal person. In addition, approximately 100 witnesses testified at the hearings and in the pre-trial proceedings."

The number of witnesses is obviously rounded down here, as 100 witnesses were questioned at the trial at the request of the prosecution, and only three (!) were defense witnesses. However, the figure of 103 is also far from indicative of the volume of witness interviews in these criminal proceedings, not least because the prosecutors refused to call a number of witnesses they themselves had originally proposed, and because the pre-trial statements of a number of witnesses were simply read out in court.

What the judgement should be like

The application states that the full reasoning part of the judgment runs to almost 1,500 pages. It is the reasoning part of the judgment that needs to be carefully read in order to be able to exercise the rights of the defense.

"One of the indispensable elements of the rights of the defense is an opportunity to effectively challenge the veracity of evidence and to object to its use, as well as a genuine opportunity to object to the court's application and interpretation of the provisions of the Criminal Law."

In its judgment, the court "must not only restate the substance of the evidence obtained in the case, but must mention the specific facts obtained from the testimonies of the persons questioned in the case, expert reports and other sources of evidence, indicating precisely what these facts are considered by the court to prove".

"If there are contradictions between the evidence, the court must analyze the reasons for the contradictions in its judgment and must state which evidence examined at the hearing it has found to be doubtful and for what reasons. Where the accused has put forward a version of the evidence in his defense, the court must carefully analyze that version in its judgment and give reasons for its conclusions as to whether or not it is well-founded. Furthermore, all findings of the court on the circumstances of the offence, which the court has included in the description of the proven offence, must be supported by the evidence obtained in the case, in accordance with the standard of proof referred to in Article 124(5) of the Criminal Procedure Law - 'beyond reasonable doubt'."

"As all the circumstances mentioned must be stated in the reasoning part of the judgment, only after the full judgment has been delivered can the parties to the criminal case start analyzing them."

The submission stresses that in the present case it is not possible to prepare "full-fledged objections on appeal" within 20 days for the approximately 1,500-page-long reasoning part of the judgment.

In his appeal, lodged on July 12 within the statutory time limit, A. Lembergs "has analysed, as far as possible, the reasoning part of the judgment of the Chamber of the Criminal Court of the Riga Regional Court of February 22, 2021,

however, objectively he lacked the time and strength to do so.

Similarly, the appeals of the defense lawyers Māris Grudulis, Olga Hincenberga and Irina Kauke have analyzed the judgment of the Chamber of the Criminal Court of the Riga Regional Court of February 22, 2021, and the appeals are very voluminous. However, if the appeals had been prepared within a reasonable time, such as the four months that the first instance court had to prepare the reasoning part of the judgment, the arguments in them would have been more detailed, deeper and more thoughtful.

Basically, the appeals were prepared only because the applicant himself worked on them, without days off, every hour and every minute that was possible in prison. The applicant was able to call on a number of lawyers - Māris Grudulis, Irina Kauke and Olga Hincenberga - who also worked without holidays and time to rest. However, it should be noted that in other cases the accused may not have the means to hire several attorneys for his defense," the submission stressed.

What the defense found in the full judgment

The submission to the Constitutional Court also briefly illustrates how the judgment in question met the above criteria and standard of proof.

"The applicant [i.e., A. Lembergs] put forward his version of the defense already in 1999, in his application to the Office of the Prosecutor General. However, it was only after receiving the reasoning part of the judgment that the constitutional complainant became convinced that it had not been investigated and analyzed."

"Before receiving the full judgment of the court, it is not known why the court found that some evidence was sufficient to prove the offence; why the court gave credibility to this evidence but not to other evidence. Nor can it be known whether and how the first instance court resolved the contradictions between evidence that are inevitable in large and complex criminal trials. There may also be a dispute about the admissibility of evidence.

For example, in the present case, paragraph 2702 of the judgment of February 22, 2021, of the Chamber of the Criminal Court of the Riga Regional Court rejects Aivars Lembergs' objections that his rights of defense have been violated", although he "is convinced that the Chamber of the Criminal Court of the Riga Regional Court violated his fundamental rights of defense during the proceedings". The judgment does not reflect, for example, a violation of fundamental rights such as "the limitation of the time of the defense debate speech, as opposed to the defense speech, which was not limited".

"Upon receiving the reasoning part of the judgement of February 22, 2021, of the Chamber of the Criminal Court of the Riga Regional Court, the applicant of the constitutional complaint noted that the evidence was incompletely presented, it was not quoted, the facts contained therein were not stated, the questions and answers to the witnesses were not stated, and therefore the evidence as a whole was not presented correctly. Moreover, the Court's judgment lacks specific references to the case files, which makes it almost impossible to find the relevant testimony or part of it in the extremely voluminous criminal case files."

"The reasoning part of the judgment does not assess and analyze the extensive testimony given by the defendant himself, as the court should have done under the Criminal Procedure Law and case-law."

"The judgment does not analyze the version of Aivars Lembergs' testimony at all; the court has not assessed the contradictions created by the testimonies of prosecution witnesses, has ignored the fact that Aivars Lembergs' testimony is corroborated by other evidence in the case, without mentioning in the judgment the reasons why, under such circumstances, the testimonies of other persons are still more credible. The judgment does not resolve the contradictions between the evidence."

"The applicant wishes to point out that the Chamber of the Criminal Court of the Riga Regional Court has copied the State accusation word for word in the descriptive part of the judgment of February 22, 2021. This has also been emphasized in all the appeals. The reasoning part of the judgment, in so far as it relates to sentencing, is almost devoid of any analysis of the defense arguments, the defense versions of events, the cause and effect relationship. The arguments put forward by the defense in its opening speech have not been examined, while the prosecution's opinion has been copied in many places," the submission states.

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