Svea court of appeals
103 17 STOCKHOLM
Case Ö 8290-14, dept 0102 Julian Assange ./. public prosecutor re rape et al; now the matter of detention
We dispute the motion that the court of appeals should rescind the decision for detention of Julian Assange in his absence.
We have been especially asked to give our opinions in four matters. Our replies are explained below.
- In our opinion, there is no reason to have oral hearings. The defence has in writing explained their position in detail, and the protocol from the district court hearing is adequately representative of how both parties explain their positions orally.
- We object to Julian Assange’s request to have a transcript of the SMS message of complainant B submitted to the appeals court. The defence have seen the materials on repeated occasions, during the detention hearings, and at times agreed upon with the police. The contents are well described in the protocol from the district court protocols from 16 July 2014.
- For appendix 1 in the appeal in its entirety and for the names of the complainants in appendix 4, there is a need for confidentiality per chap 18 § 1 and chap 35 §§ 1 and 12 of the Secrecy Act (2009:460). We are however forced to admit that several posts in a well known Internet forum on Saturday 13 September 2014 link to a web page where the appeal with its appendices has been published in its entirety. In the thread where these posts were made, several theories about conspiracies against Julian Assange are discussed.
- We hold to our opinion that interrogation of Julian Assange and conducting a body inspection, a so-called ‘swabbing’, in England would not effectively move the case and the legal process forward.
The decision of the district court is correct and should be upheld.
1. Probable cause
We wish to make the following additions to our accounting for probable cause found in our memo dated 5 November 2010, the appendix to the district court protocol from 18 November 2010, and our statement 1 July 2014, as well as in the district court protocol 16 July 2014.
Julian Assange claims that there are no objective conditions for the act of lesser rape.
Nothing in this part has changed since Svea court first judged the matter 22-24 November 2010 (Ö 9363-10). This decision was appealed by Julian Assange, and the supreme court ruled on 2 December 2010 that he would not be granted further appeal (̈Ö 5474-10).
The description of the act that was judged by the Svea appeals court is still valid. The behaviour of which Julian Assange is suspected is, in our opinion, to be seen as lesser rape.
The importance of the SMS message for assessment of probable cause
In the above mentioned appendices we account for the contents of the SMS messages which can be relevant for judging probable cause. The intent of the complainants with the SMS messages and Julian Assange’s position on how these messages are to be interpreted and judged is explained in the appendix to our statement to the district court and in the appendix to the protocols from the district court.
In summary, we believe that there is probable cause for the acts for which Julian Assange is detained.
2. Special reasons for detention – flight risk
The defence have reiterated an account, submitted to the district court and incorrect in several ways, of how the investigation was conducted and what measures were taken to arrange for an interrogation of Julian Assange in Sweden in the autumn of 2010. These allegations were met in our statement to the district court 2014-07-01. We wish to cite the account submitted in our statement pp 2-3. We wish to especially point out that through contact with the defence, it was made clear that there were investigative measures which would be taken commensurate to the preliminary investigation being reopened 1 September 2010, and that these measures were necessary before conducting an interrogation with Julian Assange. We would further refer to the account of the actual conditions submitted in the prosecutor statement 22 November 2010, appeals case Ö 9363-19.
That Julian Assange does not intend to obey the ruling of the supreme court on his surrender to Sweden is also made clear by what is included in the appeal. The flight risk remains undiminished.
3. The principles of goals and needs and the matter of proportionality
The principle of goals means that a coercive measure may only be used for the purposes sanctioned in legislation. The detention of Julian Assange in his absence intends to hinder Julian Assange from evading or hiding from due process or for sentencing for the above mentioned crimes. The goal is within the framework for the applicability domain of the cited coercive measures.
The principle of needs means that a coercive measure may only be used if there is a tangible need for the measure and if the desired result cannot be achieved with less intrusive means. When the decision was taken on 27 September 2010, it was apparent that there was a flight risk. Even earlier it was unknown where he was. Our attempts to ascertain his location failed, as did the attempts to summon him to an interrogation. It was not possible to achieve our results with less intrusive measures, such as arresting him for questioning or forbidding he travel or a duty to report. Even the subsequent attempts in the autumn of 2010 to ascertain his location failed, as did our attempts to get him to voluntarily return to Sweden. It was not clear at the time Julian Assange was remanded in his absence that he was still in the country. Therefore there was a tangible need for the coercive measure in order to conduct the investigation and to assure possible legal process. The judgement stands that there is a tangible need for detaining Julian Assange in his absence in order to achieve the desired result.
The principle of proportionality means that the nature, force, scope, and duration of the intrusion shall be in reasonable proportion to the desired goal. This is detailed in criminal code chap 24 § 1, so the reasons for detention must outweigh the intrusion and other harm which the measure means for the suspect or other opposing interest. The principle of proportionality becomes more important the longer the deprivation of liberty. In this case, the detention order has not been executed. The question instead is in which way and to what extent the time passed is to be taken into consideration and to what extent the deprivations of liberty for Julian Assange are to be considered during the process whereby his surrender in accordance with the European Arrest Warrant has continued.
We share the opinion of the district court as regards proportionality and refer to the protocol of the district court pp 5-7. We wish to also refer to our statement 1 July 2014 pp 5-6.
We will however especially comment on the following matters.
Is Julian Assange’s residence in the embassy to be regarded as a deprivation of liberty?
Julian Assange has claimed that the conditions under which he lives in Ecuador’s embassy constitute a deprivation of liberty per European court praxis. Supporting this claim, he has cited three cases from the European court (see p 3 in the appeal 12 September 2014). Common for these cited cases is that they describe different types of deprivation of liberty exacted by a state against an individual. Julian Assange has chosen to visit Ecuador’s embassy and remain there. He has the opportunity to himself choose if and when he shall leave the embassy. His residence at the embassy can therefore not be said to constitute a deprivation of liberty, and the cited legal cases are, in our opinion, not relevant here.
Ecuador’s decision on asylum
Ecuador has, according to the documents included with the appeal, made the judgement that Julian Assange meets the criteria in the UN convention on refugees and granted him asylum to protect him from political persecution. But he has not been granted asylum by Ecuador in order to evade investigation and legal process for the crimes for which he is suspected in Sweden. Political asylum does not mean immunity for other types of crimes the refugee can have committed or may commit, even in the country where it was granted.
The defence have cited certain materials to show that Julian Assange risks such a political persecution in the US as a consequence of his work with WikiLeaks for which he has been granted asylum, and claimed that he risks being surrendered to the US if the surrender to Sweden is executed.
It can seem a far-fetched thought that the US already in 2010 should have waited to take judicial measures to enable a surrender with the intention of directing the request to Sweden instead of to Great Britain. Particularly as a decision on surrender to the US from Sweden, all under the presumption it was allowed by Swedish law, would also require approval from Great Britain.
The question of obstacles to execution?
As a consequence of Julian Assange residing at Ecuador’s embassy in London, Great Britain cannot execute the legally enacted decision for his surrender to Sweden. The defence have explained that Julian Assange does not intend to leave the embassy if he risks surrender to Sweden, and he claims that this is an obstacle to execution. That Julian Assange has sought refuge in Ecuador’s embassy and there enjoys protection constitutes a temporary obstacle to execution. But this is not, in our opinion, a sufficient reason to rescind the arrest warrant.
The question instead is, in our opinion, a question of if it can still be considered proportional to maintain a detention order and thereby the issued European Arrest Warrant. As follows from our statement to the district court, we think that the reasons for detention, against the background of the gravity of the crimes for which Julian Assange is suspected and for the limited deprivation of liberty he has already been subjected to, outweigh the intrusion and other harm which the measure mean for him or for other opposing interest.
The purpose of the coercive measure to request Julian Assange be detained in his absence is to investigate the crimes Julian Assange is suspected of and to assure a possible legal process can be conducted. There aren’t any deviances here from either the principle of needs or the principle of goals.
4. The question of interrogating Julian Assange in Great Britain
We have in our statement 1 July 2014 accounted for our considerations and positions in this matter. We wish to add the following.
When the request was made to detain Julian Assange in his absence, we didn’t know where Julian Assange was. Under such circumstances there was only the European Arrest Warrant with an international search to consider, all pursuant to the gravity of the crime being sufficiently great to motivate our action. It should however be pointed out that not even if his location had been known, would Mutual Legal Assistance, keeping in mind the crimes for which he is suspected, have been appropriate. In addition to achieving the applicable investigative measures, there was also the need to assure a possible legal process. The sentencing scale for the crimes in question clearly were in excess of the requirements.
First when a European Arrest Warrant had been issued, with the request for his surrender to Sweden and with the international search also begun, was it known that Julian Assange was in London. During the time of the court hearings in Great Britain, it wasn’t appropriate to pursue other legal processes in parallel. The matter of Mutual Legal Assistance became interesting first after Julian Assange i June 2012 evaded the execution of the decision of the supreme court regarding his surrender to Sweden.
Mutual Legal Assistance in Great Britain can only be conducted voluntarily, that is to say the entire procedure is based on the suspect cooperating and approving of the measures to be taken, a consent that can be withdrawn. It is not possible to, with coercive measures, execute a decision of body inspection (for example DNA swabbing for comparison with traces found at a crime scene) or conducting interrogations. A suspect would also be able to refuse to be served according to chap 23 § 18 of the criminal code. The same difficulties can apply with attempts to serve a summons to a hearing. It’s uncertain to what extent a voluntary cooperation can be relied on in this case.
The nature of the investigative materials and the requirements for quality in investigations of sex crimes make this type of crime less suitable for a process with Mutual Legal Assistance and interrogation at a remote location, especially in cases such as this where it’s a question of interrogations and other investigative measures meant for the suspect. Against this background, we have made the judgement that body inspection and interrogation with Julian Assange in Great Britain would not lead the preliminary investigation forward in an effective way. A circumstance which also weighs heavily is that Mutual Legal Assistance in criminal cases cannot assure that a trial can be conducted in the case there is a prosecution.
We have continually, over the past two years, tested the conditions and the practical possibility for conducting the interrogations and other necessary investigative measures in Great Britain. We have not however, in addition to investigating these direct conditions, found reason to go further and take the practical measures needed to carry out such interrogations or body inspection.
5. Procedural matters
Shall we have oral hearings in the appeals court?
As we have put forth above, we are of the opinion that both parties have thoroughly detailed their positions both in written form and also orally in the district court. The protocol of the district court for the detention hearing shows how both parties elaborated their positions. The only reason that we as the prosecutors could find to hold oral hearings in the appeals court is that it gives the appeals court the opportunity to inspect all the SMS messages which the district court could inspect at the hearing on 16 July 2014. But we are of the opinion (see second paragraph p 2) that the written materials the appeals court has access to give sufficient materials with which to judge whether there is probable cause.
We therefore dispute that there are reasons for holding an oral hearing.
Reasons to not give the SMS message to the appeals court
The SMS messages constitute a part of the preliminary investigation for which Julian Assange has not yet been interrogated. In addition, they contain sensitive information about the complainants. This case has brought significant attention from the media and all the documents which have been given to Julian Assange and/or the courts have, in a way not known by us, been published on the Internet. The complainants have throughout this preliminary investigation been subjected to harassment. The one referred to here has recently been the victim of someone else incorrectly obtaining personal data from an agency and thereafter published this on the Internet. There are therefore very grave reasons to protect the SMS messages in accordance with chap 18 § 1 and chap 35 §§ 1 and 12 of the Secrecy Act (2009:460).
We therefore object to the request of Julian Assange to have the SMS messages submitted to the appeals court.
The grounds for requesting that all documents be translated into English have not been given. The arrest protocol 24 November 2010 has been translated into English because of the process in England and this can be shared with the defence. The duty to have our statements to the district court and appeals court translated into English should not rest on the prosecutors.
No evidence is cited as regards the detention.
We submit that there be only written hearings.