The illegal methods of KNAB are revealed in the Magonis lawsuit

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Last week, the Riga Regional Court continued to examine the criminal case in the second instance in which the former chairman of the board of VAS “Latvijas dzelzceļš” (LDz) Uģis Magonis and the Estonian businessman Oļegs Osinovskis are accused. The testimony in the case was given by the former operational employee of the Corruption Prevention and Combating Bureau (KNAB), AV, who worked at KNAB as the chief specialist of the Operational Development Department from 2010 to 2016. In his office there was also the operational development file of U. Magonis.

As part of the operative case, a conversation between the two defendants was overheard in July 2015 in the garden of U. Magonis’ house: the prosecution considers this conversation a very important piece of evidence, while the defense claims that the conversation was modified and, moreover, obtained illegally – therefore, it is not admissible in evidence.

You can’t listen without batteries

At issue is whether all permissions were obtained to place this device on private property and later listen in on the conversation.

“In the first instance, the prosecutor’s office said that no permission was needed, because there was no entry into the residence of U. Magonis at all. The version of the prosecution was that the conversations were recorded from a distance without the need to enter U. Magonis’ property. This was said by the public prosecutor in her debate speech.

But now that the case has reached the appeal instance, the attitude of the prosecutor’s office has changed. The prosecution now claims that the listening device was planted and there was permission to do so. There is only a discrepancy – the permit was issued in January, but the hearing took place in July. It immediately caused confusion for us,” sworn lawyer Jelena Kwiatkovska expressed the motivation of the defense.

In the second instance, the prosecutor submitted to the court an answer from KNAB. KNAB claimed that the listening device was installed with the permission of the Supreme Court in January and could operate without maintenance – without changing the battery in the device.

“Could the device work for half a year outside, in winter, spring and summer, without changing the batteries? In order to enter a person’s home and do something with that device, permission from the Supreme Court was required,” explained J. Kwiatkowska.

It was not allowed to listen without the sanction of the Supreme Court

“There is no such permission in the case. There is only permission to enter in January. But later the device had to be serviced. And in order to do this, it was necessary to enter the house of U. Magonis, which in turn required the permission of the Supreme Court.

If there is no authorization for the activities without which this entry could not be made, then this entry is inadmissible evidence and can be thrown in the wastebasket. The defense always believed that operatives entered Magonis’s house to change the batteries or otherwise service the device,” said the lawyer.

Then, when information about this KNAB response appeared in the public space, which pointed to the unusually long ability of the device to work without replacing the batteries, an AV application of a former KNAB employee was sent to the court and the defenders, in which he mentioned that, of course, he could not reveal a state secret, can’t say what the device was or other details, but he can’t claim that what KNAB stated is true.

“Of course, we demanded to call him as a witness, and he, of course, trying not to reveal state secrets in any way and answering mainly to the prosecutor’s questions, said that during this period of time between January, when KNAB was allowed to enter U. Magonis’ residence, and July, when the conversation was actually recorded, the operatives entered the property of U. Magonis several times. And he does not know whether it had the permission of the Supreme Court. He has reported the operational activities to his management, everything is documented, but he cannot say whether the Supreme Court’s permission was granted or not,” J. Kviatkovska commented on what happened at the court session on Thursday.

Considering that the necessary permission of the Supreme Court is not present in the criminal case materials, the defense believes that the conversation overheard in July cannot be used in the case as prosecution evidence.

The defense already proved this in the court of first instance, and the court agreed to it.

“But since the indictment has now been amended and some new evidence is being brought out, the defense has no choice but to point out some of the nuances of this case,” said the lawyer.

They have been chasing Magoni and Osinovski since 2015

The procedural actions and court proceedings against U. Magoni and O. Osinovski have been going on since 2015 until now. Let us remind you that they have been accused of bribery and bribery and U. Magonis was detained on the Tallinn highway with almost half a million in cash in the trunk of the car. The preparation of this amount before handing it over to U. Magon in the Estonian company “Skinest Rail AS” was legally formalized and documented, and the whole process was also filmed.

In September 2017, the prosecutor’s office went to court with an indictment (which was amended three times for O. Osinovskis in the pretrial criminal proceedings, and twice for U. Magoni), in which it was claimed that O. Osinovskis paid U. Magoni for the fact that the latter, being the public official, using his official position, will arrange for the delivery of orders from JSC “Krievijas dzelzceļš” of the Russian Federation through its president Vladimir Yakunins to JSC “Daugavpils Locomotive Repair Plant”, which was interrupted at that time due to the difficult geopolitical situation. U. Magonis and O. Osinovskis themselves also testified that the money was paid to U. Magonis for lobbying the interests of JSC “Daugavpils locomotive repair plant”, but the defense disputed the fact that U. Magonis could influence V. Yakunin in any way, using his official position pregnant.

The indictment insisted that according to the turnover and other indicators, the head of “Latvijas dželzceľas” could in no way influence V. Jakunin, the head of such a railway giant as “Krievijas dzelzceļš”, within the framework of his official position. Therefore, it should be concluded that O. Osinovskis gave the money to U. Magoni not for this possible protection, but for the purchase of four locomotives.

Trying to convict both people and the company

In addition, a unique and absurd situation has arisen, which has never been seen in Latvian judicial practice. There are two parallel criminal trials for the same case, but against different persons – in one criminal trial, in which natural persons U. Magonis and O. Osinovskis are accused, both have been acquitted in the first instance in the Vidzeme district court in Limbaži. But there is another process in which a legal entity is tried. In this case, on March 26 of this year, the Vidzeme District Court in Cēsis announced a decision by which it was decided to terminate the process regarding the application of coercive measures to the legal entity AS “Skinest Rail”, effectively “excusing” the legal entity as well and, like the Vidzeme District Court in Limbaži, not finding that a criminal offense has been committed.

This process is separated in a separate file from the criminal case, in which O. Osinovskis and U. Magonis are accused of committing a criminal offense.

The Law on Criminal Procedure stipulates that, when examining process materials on the application of coercive measures to a legal entity, the court must decide: whether a criminal offense has occurred; whether the circumstances prescribed by law have been clarified; whether the criminal offense was committed in the interests of a legal entity, as a result of good or improper supervision or control, and what means of coercive influence is applicable.

The provisions of the Criminal Law clearly state that the responsibility of a legal entity is possible only in the event that a natural person who has a certain connection with the legal entity has committed a criminal offense.

Taking into account the circumstances of the case, the court recognized that in the separated process it cannot be established that a criminal offense has occurred. Otherwise, the court would express its opinion on the guilt of the accused, which would thus violate the principle of presumption of innocence established in the Criminal Procedure Law.

Also, the court recognized that in the separate process it was not proven that in connection with the sale of four used diesel locomotives of the 2TE116 series, any unauthorized activity was carried out in the interests of AS “Skinest Rail”.

JSC “Skinest Rail” was the only applicant in the procurement organized by SIA “LDZ ritošā sasvatsa serviss” for the purchase of four used diesel locomotives of the 2TE116 series. SIA “LDZ rolling stock service” was interested in buying the mentioned locomotives, and there was no other company that could supply them. The court had no doubt that the sale price of the four second-hand diesel locomotives of the 2TE116 series corresponded to their market value or was even lower. At the meeting of the Investment Committee of VAS “Latvijas dzelzceļš” on June 16, 2015, in which U. Magonis also participated, all members of the committee unanimously agreed to the purchase of locomotives. Thus, there was no need to use the decisive vote of the president of VAS “Latvijas dzelzceļš” U. Magoņš.

Consequently, without establishing that the criminal offense was committed in the interests of a legal entity, there is no legal basis for applying the means of coercive influence provided for in the Criminal Law to the legal entity.