Svea Court of Appeals
Julian Assange, 1971-07-03
Arrested in his absence
Ecuador’s embassy in London
Flat 3B, 3 Hans Crescent
SW1X 0NT London
Counsel and defenders
- Attorney Thomas Olsson
Fria Advokater KB
Box 127 06
112 94 Stockholm
- Attorney Per E Samuelson
Law firm Samuelson, Schönmeyr & Wall HB
Box 127 04
112 94 Stockholm
Chief prosecutor Marianne Ny and vice chief prosecutor Ingrid Isgren
Development Centre Gothenburg, and
Southern prosecutors office Stockholm
Decision announced by Stockholm District Court, dept. 1, 2014-07-16 in B 12885-10
Request to rescind arrest in absence
As counsel for Julian Assange we hereby appeal the cited decision and put forth the following.
Assange moves that the appeals court rescind the decision of the district court that Assange should be arrested in his absence.
Assange also moves that the appeals court conduct oral hearings. It is difficult to convey all our arguments in written form. The detention hearing in the district court took over three hours. The defence would also like to cite a number of SMS messages obtained from the telephones of the complainants, which were brought by the prosecutor to the district court. Inasmuch as the prosecutor did not want to give us copies of these messages, either to the defence or to the court itself, then they must be once again brought to the court. It is also our intention to show the same film as was shown in the district court, see below in chapter 7, a film which i.a. shows the US attitude to Assange and shows that there is an ongoing investigation against him in the US.
Should the appeals court not grant our wishes for an oral hearing, then we reserve the right to further complement our written documents.
REASON FOR APPEAL
Julian Assange disputes that there is probable cause for the suspicions and disputes the special reasons for detention.
Julian Assange also maintains that the preliminary investigation has not been conducted with the effectiveness and urgency which can be demanded, and that what can be won by maintaining the detention order is not in proportion to the harm and damage the decision causes.
As support for his position, Julian Assange refers to the circumstances and reasons put forth in his appendices to the district court on 24 June 2014 and on 14 July 2014, appendices 39 and 51.
As regards the suspicion of lesser rape, according to chapter 6, § 1, paragraph 2 of the criminal code, it is also put forth that the investigation does not contain circumstances which constitute a criminal act, this for the reasons cited in appendix 1.
In addition: we wish, in light of the decision of the district court, to especially point out the following.
GENERAL CRITICISM OF THE DISTRICT COURT DECISION
The district court found that the restrictions imposed on Julian Assange for the time the arrest order was deliberated, that is from 7 December 2010 until 14 June 2012, have been intrusive, but not so comprehensive that the arrest decision was disproportionate.
Regarding the circumstances after 19 June 2012 when Julian Assange has resided at the Ecuador embassy in London, the district court did not feel they should be taken into account when assessing proportionality.
According to the defence, this is an incorrect judgement.
The conditions under which Assange lives inside the embassy actually constitute a deprivation of liberty according to the praxis of the European Court. (See the European Court decision 25 June 1996 in Amuur v France [case 17/1995/523/609], the European Court’s decision 6 November 1980 in Guzzardi v Italien [1980 series A number 39] and the European Court’s decision 9 April 2013 in Abdi v Great Britain [application 27770/08].)
Even if the conditions after 19 July 2012 cannot constitute a formal deprivation of liberty, the circumstances should nevertheless be heeded. The principle of need and proportionality is applicable both for deprivation of liberty and for execution of deprivation of liberty (see G Lindberg, Straffprocessuella tvångsmedel, 3rd edition, p 32). This means that even harm and damage not caused by a measure must be taken into consideration.
Nor has the district court observed in the decision that Julian Assange is exercising a fundamental human right to political asylum by remaining at the Ecuador embassy.
The defence is also of the opinion that the district court should have noted that the suspicions of crime, as the actual documents were described by the prosecutor, are not of sufficient relevance to the investigation that they can motivate the patently intrusive actions which have been imposed on Julian Assange.
The district court also found that the failure of the prosecutor to conduct an interrogation with Julian Assange in London was not in violation of the requirement for effective investigation. It seems as if the district court in its decision has not observed the fact that the prosecutor has been completely passive for the longest time. Instead the court referred to highly generic statements about Julian Assange being needed in Sweden during the investigation, and for a trial, and possibly for sentencing. No further explanation as to why this must be done in Sweden was given.
It is the opinion of the defence that the demand for a speedy and effective investigation trumps both practical issues regarding interrogations and the desire to have Julian Assange present for a possible trial. This is seen from law praxis from both the Supreme Court and the European Court, something which is laid out in previous documents.
Thus it’s been the duty of the district court to judge whether the possibility of conducting interrogations in London has been duly tested by the prosecutor, and if this is something that can in fact be carried out, and, should this be the case, what alternative methods of investigation are available. In the event there are no further alternative investigative methods, it has been the duty of the prosecutor to conduct the interrogation in London; her passivity in this regard must be seem to be in violation of the requirement for a speedy and efficient investigation.
This general criticism of the decision of the district court is explained in further detail in the following section.
SUMMARY OF REASONS TO RESCIND ARREST DECISION
A summary of the reasons the detention decision should be immediately rescinded:
- The failure of the prosecutor to conduct an interrogation with Julian Assange has continued for nearly four years. Assange has repeatedly asked to be interrogated. The actions of the prosecutor are in violation of the principles of consideration, urgency, and effectiveness, and they cause Assange, the complainants, and the state great harm.
- The detention decision causes Assange intrusion and harm which are not in proportion to the interests of the investigation and what the state can achieve through a continued detention.
- For the time 7 December 2010 – 14 June 2012, Assange was deprived of liberty for 12 days and afterwards impeded by ankle bracelet, a daily duty to report, and a duty to at nighttime be indoors and at a specific location.
- Starting on 19 June 2012 and until further notice, Assange is forced, due to the attempts to execute the detention decision, to live in conditions similar to house arrest at the Ecuador embassy in London. The Swedish state achieves nothing by this, as the detention decision can no longer be executed. As pointed out above, the conditions of Assange’s life constitute a deprivation of liberty in accordance with international praxis, whereby it should be particularly noted that this situation has existed for in excess of two years and can continue for several years more.
- The principle of need connotes that one must stop using coercive measures (that is, rescind the warrant) if it’s shown to not lead to the desired results, as is the case here.
- Continued detention violates the principle of goals because the only effect is to pressure Assange to abandon his political asylum.
- Because of the arrest in absence, Assange cannot exercise his political asylum, but is instead forced to remain inside the embassy, which constitutes is a deprivation of liberty according to international law. Assange can currently use his political asylum only inside the embassy. Assange has only availed himself of a right which is his. The right’s effective consideration presumes that he is not, as regards the detention issue, harmed by a disadvantage to his decision to exercise his political asylum, as would be the case if this decision of his were given the significance of a judgement based on the validity of continued detention.
THE PROSECUTOR’S FAILURE TO INTERROGATE ASSANGE IN LONDON
Nothing is stopping the prosecutor from interrogating Assange, and that’s been the case since 2010. Assange is of course detained in his absence. But it is widely known that since 19 June 2012 has been residing at the Ecuador embassy in London.
Since the autumn of 2010, Assange himself has in numerous ways tried to arrange an interrogation.
This failure of the prosecutor violates applicable law and in itself weighs heavily as a reason to rescind the detention.
This is the background:
The prosecutor has given five allegations of crime in the appendices. Since the Svea Court of Appeals found no probable cause for one of these five points (point 4 in appendix 12) there are but four remaining allegations.
Assange has only been served suspicion and been interrogated with regard to one of these four, point 2 in appendix 12. This took place on 30 August 2010 when Assange appeared voluntarily for interrogation in Sweden.
Assange has not been questioned or served criminal suspicion as regards the remaining points in appendix 12.
A person under suspicion has the right to be served all suspicions and to be questioned as soon as possible. In this way, suspects are given the opportunity to be exonerated by adding their own viewpoints in the matter to the investigation.
That the interrogation has not yet taken place, despite almost four years passing, is solely the doing of the prosecutor.
Assange remained in Sweden after the first interrogation 30 August 2010 in order to sort out the matter once and for all.
But the time passed and no interrogation was forthcoming. Assange had several vital commitments abroad which could not be postponed indefinitely. It was for this reason that his attorney at the time, Björn Hurtig, wrote to the prosecutor on 14 September 2010: ‘Julian Assange has urgent business in other countries. I therefore ask if there is any objection to him leaving the country for a short time.’
Prosecutor Marianne Ny rang the following day to attorney Hurtig and told him that there was no such objection to Assange leaving the country, and that interrogation with Assange was not planned for the moment.
Attorney Hurtig passed on the information to Assange.
Assange traveled to Berlin in the afternoon of 27 September 2010 to partake in a business event that had long been planned. He had further commitments in London on 30 September.
Attorney Hurtig was not in touch with Assange from 15 to 27 September 2010. That Assange could only be sporadically contacted by his attorney was because he, under constant threat by the US, was very cautious about his movements, and could only on rare occasions use his mobile phone. This matter has been explained in further detail in our other written statements to the district court.
Assange was therefore not aware that the prosecutor, on 21 September 2010 and on the days immediately afterwards, had contacted Hurtig to try to arrange an interrogation with Assange for 28 September 2010.
Assange departed from Sweden in good faith. The last he’d heard was that there was no objection to him leaving the country and that an interrogation was currently not planned.
As soon as Assange understood that the prosecutor had changed her mind about interrogating Assange, after first giving him the go-ahead to leave, he renewed his efforts to arrange for an interrogation.
On 30 September, attorney Hurtig reported that Assange was ready to return to Sweden. Hurtig suggested an interrogation on either 10 or 14 October 2010. But interrogation in Sweden didn’t happen for various reasons; see our second written statement to the district court.
Hurtig rang Marianne Ny on 8 October and offered to have Assange interrogated by telephone. He also suggested interrogation by video link at this time.
Marianne Ny rejected these suggestions on 15 November: ‘As regards interrogation via telephone or videolink, it is my judgement, as I’ve said previously, that that would be inappropriate, as this concerns suspicion of a serious crime.’
Once the prosecutor had issued the arrest warrant, Assange reported to the police in Great Britain on 7 December 2010. As explained in our first written statement, the deprivation of liberty 7 December 2010 – 14 June 2012 prevented Assange from traveling to Sweden. The defence had instead asked for interrogation in London with Mutual Legal Assistance.
Even this proposal was rejected by the prosecutor, inter alia in an SMS message 11 February 2011: ‘Because of technical investigatory issues, an application for Mutual Legal Assistance for questioning in England cannot be considered.’
Assange has been at the Ecuador embassy in London since the summer of 2012 when he applied for and was granted political asylum in Ecuador.
Assange has even in this period, on repeated occasions, put forth his demand that the investigation move forward (or be closed) by means of interrogations in London.
As an example of such a demand, an email message from 24 July 2012 is attached, appendix 2, as well as protocols from a meeting with the prosecutors on 7 May 2013, appendices 3-4.
Ecuador has also on numerous occasions made clear that the embassy in London is ready to assist in carrying out interrogations.
In summary, Assange has:
- Reported voluntarily for questioning 30 August 2010
- Kept himself available for questioning in Sweden until 27 September 2010
- Left Sweden 27 September 2010 in good faith that no interrogations with him were planned
- Offered to return to Sweden for questioning in October 2010
- Offered to be interrogated via telephone or video link October/November 2010 or by written statement
- Offered interrogation in London via Mutual Legal Assistance for the time he was deprived of liberty because of the European Arrest Warrant (7 December 2010
- 14 June 2012)
- Offered interrogation in London via Mutual Legal Assistance after applying for and being granted political asylum (19 June 2012 until further notice)
The prosecutor has systematically refused to consider Assange’s requests.
From the reply sent to the district court (attachment 42) it is shown (p 4 paragraphs 3-4) that the prosecutor’s reasons for not conducting interrogation with Assange in London are that he still has to come to Sweden ‘for a trial to be held and possibly for a sentence to be meted out’.
That it can be difficult to have a trial is not an acceptable reason for discontinuing work with a preliminary investigation.
The behaviour of the prosecutor violates the demand for urgency and the principle of consideration, both of which are established in the our national code. From the preliminary investigation decree § 5 it is established that interrogations must expressly be held at a time and place considered to incur the least possible harm for the person interrogated. See further what we’ve put forth in our first written statement under the header ‘Urgency’ with its citations of praxis and doctrine.
Nowhere in our country’s legal framework is it said that a prosecutor has the right to suspend an active preliminary investigation, which otherwise can be completed, using the motivation that ‘we have to be able to hold a trial and possibly mete out a sentence’.
The prosecutor has instead the duty to always move the investigation forward, and as quickly and as effectively as as possible, in every possible situation. The prosecutor has a duty to adapt to situations as they arise in the case.
This prosecutor’s actions cause Assange, his family, the complainants, and the public (in both Great Britain and Sweden) great harm.
If the prosecutor had conducted an interrogation with Assange in London, the preliminary investigation would have ended long ago.
The 23:18 service would have taken place; the defence would have then gained access to the complete preliminary investigation,s and had the opportunity to add with their own views, and been able to request additional information. And a decision would have been made regarding prosecution.
One must also consider the possibility that details might arise in the interrogation with Assange that would lead to the investigation being closed. By not questioning Assange, the prosecutor is disallowing that possibility. For should the preliminary investigation have been closed, the matter would have been over and done with long ago, and Assange would today be a free man.
Should there have been a prosecution, the responsibility for managing the case would have passed from the prosecutor to the district court, and the work with conducting the main hearing would have already begun.
A significant part of Assange’s oral evidence is his own version of events. But the value of oral statements as evidence deteriorates dramatically over time. The behaviour of the prosecutor has meant that Assange’s own version of significant portions of the sequence of events has not been available to the investigation for almost four years. This dramatically hurts his chances for a fair trial, particularly if one recalls that the complainants have been interrogated five times each, and in close proximity to the time of the events in question.
By deliberately suspending work with the preliminary investigation, the prosecutor has seriously damaged Assange’s chances of exonerating himself.
Because of the prosecutor’s failure to complete the preliminary investigation, no 23:18 service has taken place. Significant parts of the preliminary investigation are thus kept secret for Assange. Inter alia can be mentioned the extensive SMS traffic and the numerous interrogations with the complainants. It’s first when the 23:18 service takes place that we obtain a full overview of the evidence in the case. Should we discover a need to conduct further investigations, the passing of time will have seriously damaged the value of new evidence.
Further: Assange is forced to live in uncertainty of whether there will be a prosecution. The same applies to the complainants. The position of the prosecutor means this uncertainty has continued for nearly four years, and this harms Assange and is detrimental to his private and professional life. The same must reasonably hold for the complainants as well.
Even the public interest in seeing the preliminary investigation lead to a speedy and correct resolution is affected negatively by the prosecutor’s failure to complete the preliminary investigation (see Gunnel Lindberg’s comments till RB 23:4 in Karnov, note 678). Even Great Britain is harmed by the failure of this prosecutor – the cost of guarding the embassy now exceeds GBP 7 million.
Given this background, the actions of the prosecutor are wrong.
Assange is critical of how the district court seems to have accepted the behaviour of the prosecutor in spite of this. The district court stated (p 7 final paragraph): ‘The district court does not find that what’s emerged regarding the prosecutor’s handling of the issue of the execution of an interrogation in Sweden or in Great Britain, or the handling otherwise, leads to the judgement that the arrest in absence shall be rescinded.
The district court should have ruled that that prosecutor’s actions are unacceptable and in violation of Swedish law.
The prosecutor’s failure to conduct interrogations with Assange in London is in itself a sufficiently strong reason to rescind the arrest warrant.
If the warrant is rescinded, the prosecutor can no longer excuse her passivity by claiming she is waiting for the warrant to be executed. Rescinding the warrant would thereby force the prosecutor to complete her preliminary investigation by conducting interrogations with Assange in London.
LEGAL OBSTACLES TO EXECUTION
There’s been a stalemate in the case for over two years, caused by a conflict of norms between Ecuador’s decision to grant political asylum and the Swedish arrest in absence. Neither of these decisions can be executed. The following applies:
- Assange has applied for and been granted political asylum in Ecuador. British authorities cannot force their way into the embassy. The decision for arrest in absence can therefore not be executed. Instead, one keeps the embassy surrounded 24/7. Because of this siege, the decision for political asylum cannot be executed either. Because of this siege, Assange is prevented from full use of his political asylum. He can only exercise it by remaining inside the embassy.
- The prosecutor has explained that it is not her intention to resume the preliminary investigation until Assange has been surrendered to Sweden. Assange at his end has stated that he must remain inside the embassy until the threat of extradition to the US vanishes. The stalemate can continue for several years.
The question is how this stalemate is to be treated in judging the matter of continued arrest in absence.
The defence hold that Assange, when he visited Ecuador’s embassy, was using only a fundamental right to apply for asylum, that Ecuador granted him asylum in accordance with an internationally binding standard, and the fact that Assange is forced to remain inside the embassy in conjunction with the principle of inviolability, constitute a legal obstacle to execution.
The defence claim further that Assange’s application for, Ecuador’s granting of, and Assange’s decision to, forced by external circumstance, exercise his asylum by remaining inside the embassy constitute a deprivation of liberty or in any case an exploitation of a right, which shall not be held against him when judging whether the management of the investigation meets the requirement for effectivitiy and speed (see NJA 2011 p 518 paragraph 29).
Decision of the district court
The conclusions of the district court in this matter are clearly wrong in several ways.
The district court did not, as regards the principle of proportionality, consider the time Julian Assange has spent at Ecuador’s embassy in London (decision p 6 paragraph 3): ‘That he chose to remain in the Ecuador embassy in Great Britain is, in the judgement of the district court, not to be seen as deprivation of liberty, and shall therefore not be seen as a notable consequence of the decision to arrest him in his absence.
One cannot (as the district court did) say that Assange ‘chose’ to remain at the embassy. He has to stay at the embassy, despite the dire situation this leaves him in, because to leave the embassy would mean he abandoned his right to political asylum. To leave the embassy would expose him to a real risk of being surrendered to the US (from Great Britain or Sweden or other country) and in the US to meet with the same fate as Manning who was sentenced to 35 years prison for being an alleged WikiLeaks source. There is an investigation underway in the US against Assange, more about this below. To stay in or leave the embassy is therefore not a free ‘choice’ for Assange. It is not the role of the Swedish justice system to force Assange to abandon his right to exercise his asylum.
Even in the case where one sees Assange’s decision to remain in the embassy as a ‘choice’ by him, the decision of the district court is wrong.
First: it’s not only ‘deprivation of liberty’ that’s to be considered when judging proportionality. What’s to be considered, according to RB 24:1 is instead ‘the intrusion or other harm’ which the measures mean for the suspect.
Second: the principle of proportionality is applicable even at the execution phase, something the district court doesn’t seem to have understood, see section 3 above.
Third: the fact that Assange has so far only been able to exercise his asylum inside the embassy is not to be seen to his detriment in the matter of detention. Compare to the words of the district court: ‘That he chose to remain in Ecuador’s embassy…’ with the statement of the Supreme Court in NJA 2011 p 518 paragraph 29.
A correct analysis of Julian Assange’s residence at Ecuador’s embassy is instead the following.
Obstacle to execution
British authorities may not, because of the principle of inviolability (article 22 Vienna Convention) force their way into the embassy. The decision on arrest in absence can therefore not be executed, as Ecuador granted Assange political asylum and Assange has chosen to use his right.
One must especially note that it is not Julian Assange himself who has ruled on political asylum, but the country of Ecuador. One cannot therefore compare Assange’s situation with a situation where someone goes to his country’s own embassy to avoid execution of a detention decision. In the latter case, it’s the person who exploits a situation which already exists. But in our case, the situation is such that Assange would not have been able to remain at the embassy if Ecuador had not granted him political asylum. Thus it’s the decision of the country of Ecuador which gives him a haven, and not something he’s done himself.
That the situation given in the last paragraph (going to one’s own embassy to avoid execution) is to be regarded as a legal obstacle to execution can be seen by the doctrine G. Lindberg, Straffprocessuella tvångsmedel, 3rd edition. p 151 & p 787.
The conclusion is that Ecuador’s decision to grant asylum and the fact that Assange has been forced to exercise his right to asylum at the Ecuador embassy, in conjunction with the principle of inviolability, a legal obstacle to execution.
Decision on asylum
From excerpts from Ecuador’s decision to grant Julian Assange political asylum, appendix 5, it emerges that the decision is based, inter alia, on the 1951 Refugee Convention. The same holds for the attached letter from 15 July 2014 from Ecuador’s embassy in Stockholm to the undersigned, appendix 6. From the decision and the letter it is additionally clear that Ecuador granted Assange protection against surrender to the US. Finally, it is clear from the decision that the judgement was in accordance with the guidelines in article 1 A (2) of the Geneva Convention.
Ecuador, Great Britain, and Sweden have all ratified the Refugee Convention.
From common international principles thereby follows:
- It is up to each member state (Ecuador) to itself decide whether an application for political asylum meets the criteria.
- Other member states (Sweden and Great Britain) have the responsibility to accept a decision on political asylum announced by another member state. The decision may only be questioned if it should later appear that the applicant has submitted fraudulent information or if the applicant’s status as a refugee changes according to the rules of the convention.
- To interpret the circumstances in any other way, or to appraise the risk for persecution in any other ay, is not sufficient grounds for questioning a decision on political asylum.
Neither Sweden nor Great Britain have in this case questioned the judgement of Ecuador, a matter that would in such case have been referred to the International Court, see article 38 of the Geneva Convention.
It is also clearly established that there is a tangible threat against Assange.
On 5 April 2010, WikiLeaks published the Collateral Murder video which shows a helicopter attack carried out by US forces against civilians in Iraq. Later that same year, they published 75,000 secret documents from the Pentagon regarding the war in Afghanistan (Afghan War Diaries), 400,000 documents called the Iraq War Logs, and over 250,000 US diplomatic cables (Cablegate). In 2011 they published 779 prisoner dossiers from Guantanamo (Guantanamo Files).
The reaction in the US can be seen at the following YouTube link: http://www.youtube.com/watch?v=b-DIZvcK6Rc. This video was shown at the district court hearing.
Bradley (now Chelsea) Manning was sentenced on 20 August 2013 by a US military court to 35 years prison, accused of having leaked over 700,000 documents to WikiLeaks.
There is even an investigation of the ‘founders, owners or managers of WikiLeaks’. That this is the case can be seen from the attached certificate issued by Assange’s US attorney Michael Ratner, appendix 7.
Assange thereby risks a long prison sentence if he is surrendered to the US, at least as long as Manning’s 35 years.
This is why Ecuador granted Assange political asylum, and why Assange was forced to use his asylum, albeit only inside the embassy.
With this in mind, it is established that both the granting and the exercise of the political asylum are serious. The intention is not – neither from Ecuador nor Assange – to avoid or to contribute to avoiding execution in Sweden, but to protect Assange against the much more serious investigation being carried out in the US.
Asylum is a right
The same holds for Assange’s forced decision to exercise his political asylum inside the embassy. This is a legitimate action, a fundamental human right, found in the UN Declaration of Human Rights, article 14, paragraph 1.
Even in article 18 of the EU charter of fundamental freedoms and rights there is a guarantee of the right to asylum. It refers to the Geneva Convention of 1951 and the supplement protocol from 1967. The regulation in article 18 of the EU charter overrules domestic Swedish law. From this it follows that Swedish law may not be applied in such a way as to conflict with article 18, and that laws concerning EU law must be interpreted according to article 18. Inasmuch as article 18 refers to the Geneva Convention and the supplement protocol, even the definition of the concept of refugee in article 1 A (2) is applicable. To attempt to get someone surrendered to Sweden through execution of a detention decision, when the person has been granted political asylum in another state precisely because of the risks of being persecuted, inter alia if that person is surrendered to Sweden (and when Swedish authorities have chosen to not guarantee that Sweden would not surrender Assange to the US) then this can hardly meet the requirements for respect for the international standard cited above.
In summary, we can say that Julian Assange, when he visited Ecuador’s embassy, was only exercising a fundamental human right to apply for asylum, that Ecuador granted him asylum in accordance with a binding standard of international law, and the fact that Assange has been forced to exercise his right to asylum inside the embassy in accordance with the principle of inviolability all constitute a legal obstacle to execution.
Further: the application for, the granting of, and the decision to use political asylum all constitute a fundamental human right and may therefore not be seen as detrimental to Assange when judging if the investigation meets the requirements for effectiveness and urgency (see NJA 2011 p 518 paragraph 29).
That Great Britain has not been able to sort out its inter-state relations with Ecuador even as they support Sweden in the attempts to execute the detention decision is not a circumstance that can be cited by the Swedish prosecution authority to preserve the exceptionally drawn-out execution.
Exercising political asylum is thus not a means of avoiding execution, but a way to protect oneself with refugee status against persecution, by using a human right. And this should not be held against Assange in the current detention issue.
That Assange exercises his political asylum as long as there is a threat of surrender to the US shall, in summary, be seen as the use of a fundamental human right which cannot be held against Assange in the current detention issue, NJA 2011 p 518 paragraph 29.
Consequences of the obstacles to execution
The attempts to execute the arrest in absence force Julian Assange to remain in a very small living area 24/7, without the possibility of ever being outdoors, and thereby limit his right to travel and move freely. His contact with his children and other members of his family, and relatives and friends, is made impossible or seriously limited. He does not obtain adequate medical care.
This constitutes without a doubt an ‘intrusion or other form of harm’, caused by the decision for arrest in absence, which naturally must observe the principle of proportionality in the execution phase. As pointed out above, Assange’s current living conditions meet the criteria for deprivation of liberty according to international praxis.
The conclusion of the district court in this matter is clearly wrong.
A correct judgement of proportionality is instead that one, in addition to the intrusion and harm one caused Assange for the time 7 December 2010 to 14 June 2012, must even heed the conditions, similar to house arrest, under which he has lived since 19 June 2012.
Sweden has nothing to win by letting this continue, because the decision cannot be executed. But maintaining the decision causes Assange great personal suffering. One must in addition observe the limited significance from an investigatory point of view, see above in section 3.
When assessing proportionality, one must in addition especially note that no solution is in sight.
The stalemate can continue for several years. The statute of limitations for the claim of rape is ten years. The ongoing investigation in the US can go on even longer.
The judgement of proportionality must, with particular respect for the fact that no solution is in sight and that the current stalemate cannot provide the state any benefit but does in fact harm Assange, connote that the detention decision must be rescinded.
Rescinding the detention decision for arrest in absence would force the prosecutor to do what Assange has asked for nearly four years: continue the investigation by conducting an interrogation with him in London.
That there’s a stalemate in the case with no solution in sight carries consequences in addition to the proportionality judgement.
It namely follows, from the principles of need and goals, that one must rescind a detention decision which cannot be executed, the effect of which is only to pressure the suspect to voluntarily abandon a fundamental human right.
The conclusion of the district court in this matter is, surprisingly enough, completely unmotivated (p 6 final paragraph): ‘A surrender does not seem possible at this time because Julian Assange, as far as is known, is inside an embassy, but the court does not find that this is sufficient reason to rescind the decision that he be arrested in his absence.’
But this viewpoint of the district court is not only unmotivated, it also happens to be wrong. The obstacles to execution described above must also be applied in the matter of the principles of needs and goals.
The principle of need means that, inter alia, the means of coercion must produce the desired results. An intrusion must cease if it is shown to not produce results. The coercion must be both necessary to achieve the desired effect and really lead to this happening. Further, one must stop using coercion if it’s shown to not lead to the desired results (Bylund, Tvångsmedel I, Gothenburg 1993, p 58 and Ekelöf, Bylund and Edelstam, Rättegång, 3rd brochure, 6th edition p 29).
The principles of need and proportionality can intersect. One can say that the principles are closely related in such a way that a decision on coercion which violates the principle of need will normally also be in conflict with the principle of proportionality (Prop. 1988/89:124 p 26; Lindberg aa, p 25 and p 31).
The case has had a legal obstacle to execution for two years. By all accounts, this obstacle will remain for several years more. From the principle of need follows thereby that one must stop using the coercion (ie rescind the warrant) because it has been shown to not lead to the desired results.
A decision for detention must also meet the principle of goals. The meaning of this principle is that a coercive measure may only be used for the purpose for which it is given in the law (prop. 1988/89:124 p 27). To use a coercive measure for another purpose than what is given is not permitted.
SOU 1977:50 states (p 80) that the special conditions for detention shall be applied restrictively: ‘Detention shall not be used to achieve an objective which lacks relevance to the risks of flight, collusion, or recidivism, even if a detention might in other ways prove beneficial, by for example easing and hastening the preliminary investigation and the hearings in court or by encouraging a suspect to admit guilt.’
The purpose of detaining Assange in his absence is, according to the prosecutor, so he may be apprehended and brought to Sweden for legal process.
But that goal cannot, as has been shown above, be achieved any longer.
The prosecutor’s claim that Assange, despite this, should remain arrested in his absence has as its sole consequence the pressure put on Assange to voluntarily abandon his political asylum. A personal coercive measure may not be used to pressure a suspect into voluntarily abandoning a fundamental human right. That Assange was forced to exercise his political asylum shall not, as noted above, be held against him, NJA 2011 p 518 paragraph 29. This applies even if one chooses to see things as if Assange himself chose to opt for asylum.
And so it follows, even from the principles of need and goals, that the detention decision must be rescinded, whereby it should be particularly noted that the stalemate can be expected to continue for several years.
TRANSLATION TO ENGLISH
Assange has not been given English translations of the detention decision or the prosecutor’s written reply. He’s had to finance this himself, and that’s not the way it’s supposed to work. He therefore requests that all court and other documents be in the future be translated into English and sent to us for forwarding to our client.
Stockholm 12 September 2014
- Probable cause
- Email 24 July 2012
- Prosecutor’s protocol from meeting 7 May 2013
- Defence protocol from meeting 7 May 2013
- Excerpts from Ecuador’s decision 16 August 2012 to grant Julian Assange political asylum
- Letter 15 July 2014 from Ecuador’s embassy in Stockholm to Thomas Olsson and Per E Samuelson
- Affidavit from Michael Ratner
Thanks to Figaro Pravda for posting the original documents.