The State may have to pay for banning Lembergs from holding office

One of the reasons why the Administrative District Court accepted Aivars Lembergs' application for compensation for material and non-material damage is the detailed legal reasoning of this application, concludes Neatkarīgā after reviewing the document.
26.11.2021. Uldis Dreiblats, Ritums Rozenbergs
 
Aivars Lembergs' application to the Administrative District Court analyses in detail the unlawful conduct in imposing a disproportionately long security measure without justification ©Oļesja Sokolova/F64

As is known, on August 23 this year, A. Lembergs' authorised representative, lawyer Dr. iur. Inese Nikuļceva addressed the Ministry of Justice (MoJ) with an application seeking compensation for the damages suffered by A. Lembergs as a result of the unreasonably long security measure - a prohibition to perform the duties of the Chairman of the Ventspils City Council and the Chairman of the Board of the Freeport of Ventspils. On October 11, the State Secretary of the MoJ, Raivis Kronbergs, decided to refuse to issue an administrative act in favor of A. Lembergs in relation to the claim for compensation for the damage caused. In accordance with the procedure laid down by law, A. Lembergs, through I. Nikuļceva, appealed against the decision to the Administrative District Court, which accepted A. Lembergs' application.

If the court finds that the claims of A. Lembergs and his lawyer Dr. iur. Inese Nikuļceva's arguments as well-founded and the application is fully upheld, the State budget will pay 244,182.61 euros in material damages and 27,000 euros in non-material damages to A. Lembergs.

Ignoring the will of the electorate

The application to the Court points out that the security measure in question was imposed from August 13, 2007, until February 22, 2021, i.e. 13 years, 6 months and 9 days. It is stated that the imposition of the security measure must not have a punitive function. The prolongation of the measure becomes similar to an execution of a sentence and thus violates the presumption of innocence. It is reminded that since the beginning of the application of the security measure, three municipal elections have been held - in 2009, 2013 and 2017. In the elections, A. Lembergs won the confidence of the people by an overwhelming majority of votes, but by barring him from holding office, the court has ignored the public's wish to see A. Lembergs as a deputy and as the Chairman of the City Council. This has had a negative impact on the political process in the country and has prevented voters from exercising their political will.

For too long

The legal basis of the application states that "the imposition of a security measure prohibiting a certain occupation for such a long period of time, and moreover without a clear, fact-based reasoning of the court as to the necessity of imposing and continuing such a security measure, is unlawful."

It states that it is the MoJ that has the power to assess the unlawfulness of a court's action. This is provided for in the Law on Compensation for Damage in Criminal and Administrative Proceedings.

The submission explains that the MoJ has not assessed the merits of the continued application of the security measure and the necessity of its continued application in accordance with the fundamental rights guaranteed by Article 101 and Article 106 of the Constitution and has not drawn any conclusions on the legality of this action. It is reminded that Section 254(1) of the Criminal Procedure Law provides that a prohibition to engage in a certain type of occupation or to perform the duties of a certain position as a security measure shall be imposed "for a time". In this context, the document also quotes the publication by Andrejs Judins, a political opponent of A. Lembergs, "Security Measures Not Related to Deprivation of Liberty" (source: Providus, Riga, 2008, p. 77): "The rare application of such a security measure is related to its legal nature - it makes sense if a criminal offence has been committed through the use of an official position held if, in addition, there are grounds to believe that, by continuing in the specific occupation, the person will be able to commit new criminal offences and/or conceal facts relevant to the criminal proceedings or influence the persons involved in the proceedings."

No justification given

The application to the Court states that "it is not possible to find any justification as to what legitimate aim could have led the process facilitator to impose a security measure prohibiting a certain occupation without a time limit and why it continued without judicial control for a disproportionately long period - more than 13 and a half years. It is also not possible to find a justification for the imposition of this security measure without controlling the need for its continued application. The Ministry of Justice's decision also fails to point to such a legitimate aim."

In comparison, the case-law of the European Court of Human Rights on detention as a security measure is mentioned: "A person charged with a criminal offence must always be released pending trial unless the State can show that there are 'adequate and sufficient' reasons to justify the continued detention of the person. The public authorities must provide a convincing justification for any period of detention, no matter how short. The existence of a well-founded suspicion that the arrested person has committed an offence is a condition sine qua non for the validity of his continued detention. The decision to continue detention must prove that there is indeed 'reasonable suspicion'. Moreover, there comes a point at which the existence of reasonable suspicion is no longer sufficient and the judicial authorities must provide other grounds to justify the deprivation of liberty."

The application to the Court emphasizes that, in imposing the security measure of prohibition of a certain occupation, the officials should have provided in their decisions the motivation in what way, by organizing the work of Ventspils City Council, A. Lembergs could influence witnesses or otherwise unlawfully influence the achievement of the objective of the criminal proceedings.

The document reminds: "Since the application of a security measure must in no case have a punitive function, this means that the security measure must not be as severe or even more severe than the penalty for the offence."

The will of the electorate must be valued more highly

The application to the Court explains that the Chairman of a local council is a political official - an official elected in accordance with the political will and confidence of the members, who in turn represent the political will and confidence of the electorate. By voting in municipal elections, voters express their opinion on whether that person, as a candidate for election, has the confidence of the electorate or, on the contrary, does not. After the imposition of the security measure, A. Lembergs was elected to the Ventspils City Council three times - in 2009, 2013 and 2017. The party he leads, For Latvia and Ventspils (Latvijai un Ventspilij), won the largest number of seats in the Ventspils City Council, while A. Lembergs himself won the largest number of votes in Ventspils in all three of these elections. "Thus, in this particular case, the public (the voters) have clearly indicated that they are interested in the applicant continuing to serve as the Chairman of the Ventspils City Council. The number of votes cast for the applicant shows that the voters trust the applicant and are confident that he will work in the interests of the voters in Ventspils City Council and will certainly not commit any criminal offences or other unlawful acts. Thus, at least in cases where the security measure of prohibition of a certain occupation is imposed on a political official, the decision of the process facilitator, which represents the public interest that officials should not abuse their office, cannot be valued higher than the confidence expressed by the voters in the general elections, who are the bearers of the sovereign power of the State."

The document to the Court emphasizes that "the security measure in the specific case - the prohibition to perform the duties of the Chairman of the Ventspils City Council and the duties of the Chairman of the Freeport of Ventspils Board - as a restriction on the fundamental right to participate in state and local government activities and to perform public service and on the fundamental right to choose an occupation and workplace violates the fundamental rights guaranteed in the first sentence of Article 101 and the second sentence of Article 106 of the Constitution and is unlawful."

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