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Assange Appeal Response

To
Svea Court of Appeal
Section 1

RESPONSE

Case Ö 8290-14: Julian Assange ./. Söderort Prosecution Authority in Stockholm

By reason of the Court of Appeal’s order in filing 11 to submit a response to filing 10, we wish to submit the following.

1. INTRODUCTION

We note that the prosecutors verify that an obstacle to execution exists.

We also note that the prosecutors admit that no measures at all have been taken to arrange for a questioning of Julian Assange in London, despite the fact that the preliminary investigation has been in place since August 2010 and that the obstacles to execution have been in place since June 2012, and by all indications will continue indefinitely.

We further note that the prosecutors do not offer any solution to the deadlock other than the continued detention in absentia in order to pressure Julian Assange into renouncing his political asylum.

We also note that the prosecutors almost entirely fail to meet our legal reasoning (partly in relation to the prosecutors’ general duty to progress a preliminary investigation and partly about the consequences of the fact that the order to detain in absentia cannot be executed) with the extensive referencing of doctrine and praxis which we have provided both to the District Court and in our appeal.

Regarding the question about how the SMS that Assange refers to shall be presented in the Court of Appeal, Assange makes a motion (see section 4 below) to that the court for the prosecutor to hand over a copy of the SMS traffic. Alternatively, Assange makes a motion that an application be made to the European Court of Justice for a preliminary ruling.

We therefore mainly wish to refer to our earlier submissions, to which we wish to add the following positions and additions.

2. ASSANGE’S ACTUAL LIVING CONDITIONS CONSTITUTE A DEPRIVATION OF LIBERTY

To avoid possible misunderstandings, it should be explained (as is also done in the appeal) that Assange first and foremost argues that the circumstances of his stay at the Ecuador embassy constitute a deprivation of liberty. This matter is elaborated in this section.

In the case that the circumstances are not considered to constitute a deprivation of liberty, the circumstances should alternatively be taken into account in judging proportionality at the execution stage. This latter matter is taken up in section 3.

As support for the claim that the circumstances under which Assange is living since 19 June 2012 constitute a deprivation of liberty, Assange has in his appeal cited several cases from the European Court.

The prosecutors counter in appendix 10 that the legal cases lack relevance because they describe ‘different types of deprivations of liberty imposed by a state on an individual’ and because Assange ‘chose to visit the Ecuador embassy and remain there. He can himself decide if and when he wants to leave the embassy.’

This reasoning of the prosecutors is incorrect. The praxis of the European Court is relevant to this case and their significance is as follows.

According to the European Court of Human Rights, a deprivation of liberty exists when a person is forced to choose between incarceration or giving up a fundamental human right such as a grant of asylum. This is clear from a number of cases in the European Court.

In the case of Amuur v France, a number of people had fled to an international airport in Paris in order to seek asylum. However, France refused to let them cross the border into France for several reasons. They remained in the transit zone of the airport for approximately 20 days. In the court case, France insisted inter alia (see the judgment paragraph 46) that the applicants had not been deprived of liberty as they could at any time have ended their presence in the transit zone by boarding a departing airplane. The European Court rejected this argument (see judgment paragraph 48) and stated that the possibility of leaving the airport willingly did not exclude the existence of a deprivation of liberty, after which it was established in paragraph 49 that the applicants had indeed been deprived of liberty.

In the case of Abdi v United Kingdom, the matter before the court concerned the applicant’s refusal to voluntarily cooperate in the execution of an extradition. The court found that the applicant’s refusal to cooperate did not disadvantage the applicant’s claim.

There are further cases which illustrate this principle, such as Mikolenko v Estonia, Riad & Idiab v Belgium, and Storck v Germany.

The European Court of Human Rights has established that a deprivation of liberty does not necessarily require traditional detention, but rather should be assessed on the degree of intrusion on the individual’s freedom of movement. This assessment is not affected by the individual’s possibility to leave the place, if leaving would mean renouncling a fundamental right or exposing themselves to an unacceptable risk.

For Julian Assange, it would mean that in order to utilise his right to political asylum, he must remain inside the embassy premises. If he were to leave the embassy premises, he will be deprived of his liberty and risks extradition for political crimes to the United States, given that there is no guarantee that Sweden and the United Kingdom would respect Ecuador’s decision of granting Julian Assange political asylum if there were an extradition request from a third country.

This coercion shall be seen as a deprivation of liberty in accordance with article 5 in the European Convention on Human Rights. Compared with above mentioned cases (Amuur v France and others) the circumstances under which Assange is forced to live are much more severe.

The circumstances that constitute a deprivation of liberty are, in summary as follows:

  • Assange has been forced to remain in the embassy for over two years.

  • The situation will by all indications continue for the foreseeable future/indefinitely (‘indefinitely’ in the ECHR’s jurisprudence).

  • The situation is coupled with arbitrariness and judicial uncertainty, which derive from the fact that the Swedish preliminary investigation is not being pursued (contrary to the European Court of Human Rights jurisprudence).

  • Assange has not been outdoors since 19 June 2012. (The right of a person who is deprived of liberty to be outdoors at least an hour a day is a fundamental rule that follows both Swedish law (Chapter 2, of the Detention Act) as well as European-wide rules (See the Council of Europe’s minimum standards for prisoners Article 27.1)

  • Assange’s living quarters are approximately 30 square metres.

  • The living quarters are surrounded around the clock by British police.

  • The Ecuador embassy discovered surveillance equipment on the premises.

  • Assange has no access to adequate healthcare. Should he be forced to seek hospital care, he will lose his political asylum and will be arrested.

  • Assange has no normal contact with his children or his family.

  • Assange cannot carry out his professional duties in a normal fashion.

The decision of arrest in absentia is the basis of the European Arrest Warrant, which in turn is the reason the embassy of Ecuador is surrounded around the clock by the United Kingdom, which thereby makes it impossible for Assange to exercise his political asylum other than inside the embassy. Residence in the embassy is, in other words, a result of the deprivation of liberty imposed on Assange by the state of Sweden.

The fact that Assange is forced to choose between being locked in the embassy and renouncing his political asylum should be considered a compulsion and should not disadvantage Julian Assange.

Assange’s presence at the embassy is an arbitrary and indefinite deprivation of liberty.

Given that it is not possible to, with legally binding effect, consent to a measure that amounts to a deprivation of liberty, Assange’s subjective position, on its own, lacks significance on the matter of whether the situation amounts to a deprivation of liberty.

The situation is therefore a deprivation of liberty per chap 2 § 8 of the Constitution and article 5 of the European Convention on Human Rights, and for this reason should be brought into the assessment of proportionality in the arrest decision.

Assange’s remaining in the embassy amounts to a deprivation of liberty and the significance of this is that he has de facto already served the period of time of a sentence which is nearing the theoretical maximum sentence for the suspected crime, and therefore the time that follows would exceed the penalty, if he were convicted. It is also relevant that three of the four outstanding suspicions will reach the statute of limitations in August 2015.

The treatment of Assange is also in violation of the European Convention of Human Rights in accordance with other decisions by the European Court on Human Rights.

Article 3 stipulates that no person can be exposed to torture or inhuman and degrading treatment or punishment. The conditions that Assange is forced to live under at the embassy violate this article.

The prosecutors’ passiveness means that the infringement of Assange’s rights according to Article 6, which include inter alia the right to a fair trial within reasonable time, is established (see for example Wemhoff v Germany, Kart v Turkey, Eckle v Germany, König v Germany, Neumeister v Austria, Tingerisen v Austria, Pélissier and Sassi v France and Pedersen and Baadsgaard v Denmark).

Assange’s presence at the embassy curtail his ability to live a normal family life, which violates article 8.

Finally, the prosecutors’ actions also violate Article 18 because the effect of continued arrest in absentia is to force Assange to choose between a deprivation of liberty and giving up a fundamental human right.

3. CONSEQUENCES OF THE LEGAL OBSTACLE TO EXECUTION

Under any circumstances, the actual situation in which Assange is living should be

taken into account at the ongoing execution stage.

As we have previously argued, the principles of legitimate purpose, necessity, and proportionality also apply during the phase of the ongoing execution, a fact that the prosecutors choose to disregard in filing 10.

The prosecutors allege in relation to the legitimate purpose principle that the purpose of the original decision on detention in absentia falls within the permissible reasons provided by law, which is not what we argued. What we argue is that the consequences in the phase of ongoing execution in practice results in putting pressure on Assange to renounce his political asylum, which does not fall within the principle of legitimate purpose.

The prosecutors similarly avoid the principle of necessity. The prosecutors simply attach themselves to what they considered was necessary in the autumn of 2010 (even though the circumstances have changed radically since then) and completely fail to comment on the fact that it follows from the principle of necessity that the applicable phase of ongoing execution (in accordance with the previously referred to positions in the legal doctrine) requires that detention in absentia must be nullified if it cannot be carried out.

Finally, in relation to the principle of proportionality, the prosecutors and the District Court made the same mistake: They entirely fail to make an assessment on proportionality at the ongoing execution stage.

Herein lies the decisive error of the District Court. They have first considered the matter about whether Assange’s presence at the embassy constitutes a deprivation of liberty. They have (incorrectly, see section 2 above) come to the conclusion that there is no deprivation of liberty, a conclusion that has led the District Court to totally ignore – in a gravely and erroneous manner – the appalling consequences that the arrest decision in fact has for Assange in the current stalemate. The error lies in that the District Court has not realised that the proportionality assessment at the ongoing execution stage must be done, even if they have reached the conclusion that the criteria for a deprivation of liberty are not fulfilled.

The actual circumstances of Assange’s current life must obviously be considered when judging proportionality at the execution stage. It follows both from domestic law, NJA 2011 s. 518 p. 29, as well as the jurisprudence of the EctHR (as per the above-mentioned cases) that Julian Assange cannot be disadvantaged by the fact that he has been forced to exercise his political asylum inside the embassy of Ecuador.

Assange is caught in a hopeless dilemma. He is forced to choose between remaining at an embassy on arbitrary grounds until further notice, or leaving the embassy and thereby losing his political asylum, with the risk he be surrendered to the United States to face prosecution.

Assange lives his entire life in an area of only 30 square metres. He has not been outdoors a single minute since 19 June 2012. He has no access to healthcare. He has been denied all normal contact with his family and his children. He cannot carry out his professional duties. He is forced to live his life physically surrounded by police around the clock. He is most likely under auditory surveillance. The prosecutors have, for over four years, refused to take a single step in the preliminary investigation. And yet they demand continued arrest in absentia for the apparent purpose of exploiting Assange’s precarious living situation to pressure him into leaving the embassy, which would happen at the expense of his political asylum which he would thereby lose, which in turn would expose him to the risk of ending up in a US prison cell for perhaps 35 years or more.

It is therefore absolutely clear that it is the duty of the Court of Appeal to rescind the warrant for arrest in absentia. It needs to be repeated that this would force the prosecutors to resume their work on the preliminary investigation. They will no longer be able to hide behind the arrest warrant decision, and they will no longer be permitted to pressure Assange into abandoning his political asylum. The preliminary investigation can then move forward under normal conditions, that is to say Assange will not have to abandon his political asylum.

4. MOTION THAT A COPY OF THE SMS RECORDS BE HANDED TO THE COURT OR ALTERNATIVELY THAT AN APPLICATION BE MADE FOR A PRELIMINARY RULING TO THE ECJ

Julian Assange requested at the District Court remand hearing to be granted access to, inter alia, all SMS that have been extracted from the complainants’ phones. The prosecutor responded to the request by making copies of the SMS temporarily available to the defence only during part of the hearing, after which the prosecutors took them back. No copy was provided to the court, which has not had access to the SMS at all.

Julian Assange’s request is based on Chapter 24 § 9a of the Procedural Code which states that the suspect has the right to know the circumstances on which the remand decision or arrest decision are based. In the preliminary works for the decision, it is clear that the goal of the decision is for the suspect to have a right to access material that is necessary to effectively challenge the decision (prop. 2013/14:157 s. 28).

The ordinance is an implementation of Art 7 of the European Parliament and Council Directive 2012/13/EU of 22 May 2012. The articles are based on articles 6, 47 and 48 of the European Charter of Fundamental Rights (henceforth the Charter ) and articles 5 and 6 of the European Convention on Human Rights (henceforth the European Convention) and have been decided on the basis of article 82.2 of the Treaty of the Functioning of the European Union (see points 8 and 14 of the Directive’s preamble). The purpose is to create common minimum rules in order to guarantee certain basic rights of suspects and to reinforce mutual trust in the criminal justice system of member states which is the basis of the principle of mutual recognition of decisions.

The matter of how the material shall be made available to the suspect is not expressly set out in the law, but the government white paper stipulates that there is no right to obtain a copy of the material; it should be handled in such a manner that is considered appropriate, and this will be assessed on a case-by-case basis (prop. 2013/14:157 s. 28).

In certain cases it may obviously be sufficient to make the material available without providing a copy, so that the suspect may be given the possibility of assessing the significance of the material. However, it cannot be understood to be sufficient to only let the defence access the material in that way in cases where the material is extensive requires to be broken down and analysed before it can be assessed. Neither is it sufficient for the prosecutors to allow the defence, but not the court, access the material in a case where the suspect wishes to make references to the material in order to challenge the decision on deprivation of liberty.

In the present case, the material involves a large amount of SMS which contain a significant amount of information of direct or indirect significance for the assessment of the events that led to the decision to arrest. The SMS contain comments about the events occurring between Julian Assange and the complainants as well as statements about the purpose of the actions that followed. To get a clear understanding of the significance of the SMS records and their bearing on the matter of whether there is probable cause for the suspicions, it is necessary for the SMS to be analysed and put in context, both internally and in relation to the other circumstances. Obviously, it is not possible to carry out this analysis during the time that the material is accessible during the course of a court hearing.

Furthermore, it is not possible for Julian Assange to utilise the rights that he is entitled to in Chapter 24 § 9a of the Procedural Code in an effective and forceful manner if he is not given the possibility to make reference to and use the material before the court which he considers to be necessary in order to challenge the arrest decision.

The prosecutors’ decision not to hand over copies of the material and the Court of Appeal’s decision not to allow an oral hearing means that Julian Assange is prevented from making reference to and using the content of the SMS in an effective manner and the court also does not have the possibility to test their significance in relation to the matter of evidence.

Therefore Julian Assange makes a motion that the Court of Appeal compel the prosecutors to hand in the material that contain the complainants’ SMS to Julian Assange and/or the Court.

In the case that the Court of Appeal decides that it will not accede to this request, and given that the matter falls in the ambit of EU law, he makes a motion, secondly, that the Court of Appeal make an application to the European Court of Justice for a preliminary ruling in relation to whether it follows from Article 7 of the Directive that the prosecutor must hand over copies of materials that the suspect has been able to see and wishes to invoke as the basis of his challenge on the question of a deprivation of liberty.

5. POSITIONS ON THE REASONS GIVEN BY THE PROSECUTORS IN ORDER NOT TO HOLD A QUESTIONING WITH JULIAN ASSANGE IN LONDON

The Court of Appeal has (paragraph 4 appendix 9) prescribed the prosecutors to explain their reasons for not undertaking interrogations of Assange in London.

The reply from the prosecutors is essentially a repetition of their previous statements. The main reason they give for the preliminary investigation remaining frozen -now for over four years – is that if a questioning of Assange in London were to lead to ‘a trial’ in Sweden, ‘it would not be able to be carried out anyway’. As we have already extensively explained in our appeal, see especially s. 6f, this is not a reason provided for in law for the prosecutors’ passivity in relation to a preliminary investigation.

In filing 10, the prosecutors mention some additional circumstances, which according to the prosecutors would explain this total passivity. They mention especially supposed perceived problems regarding service (23:18 service, service of a summons application or summons to appear at the hearing ) and that interrogation and DNA swabbing with Assange cannot be carried out in United Kingdom ‘without consent’.

It is difficult to follow their logic.

When it comes to statements about future, perceived serving problems, it is obvious that such practical, and hypothetical, problems cannot justify under any conditions that a prosecutor interrupt a preliminary investigation which could be progressed.

When it comes to interrogations, a suspect always has an unconditional right to refuse to answer questions. There is therefore no difference, from the ‘consent angle’, between conducting interrogations in London or in Sweden. Voluntary cooperation of the suspect is a necessary requirement in both scenarios.

In this actual case however, there is an explicit request from Assange to conduct interrogations. He’s been asking for this repeatedly for over four years. It should also be noted that he already freely cooperated with interrogations on 30 August 2010.

Ecuador has also declared its readiness to assist in enabling the interrogations.

It is obviously incumbent on the prosecutors to meet Julian Assange’s and Ecuador’s requests for an interrogation. To halt work on a preliminary investigation, which can be pursued, is never permissible and it damages the interests of all parties (which we have already explained in our appeal).

When it comes to the DNA swabbing as a pretext for being totally passivity for over four years, the prosecutors’ logic is also difficult to follow.

The prosecutors have not requested a DNA-test from Assange, neither when he was in Sweden nor after that. The DNA issue only has limited relevance as evidence (Assange has not denied that he had sexual relations with the complainants) and in any case, Assange already had a DNA test. The DNA test occurred on 7 December 2010 when Assange handed himself over to British authorities to be arrested under the EAW. This is clear from the attached ‘agreed statement of facts’ (page 38), exhibit 1, a document drafted jointly by the parties in conjunction with the legal extradition process in United Kingdom.

The prosecutors’ references to supposed difficulties with interrogations and DNA swabbing are thus completely untenable as explanations for not progressing the preliminary investigation.

The duty to progress the investigation not only violates domestic law but also the jurisprudence of the European Court (see eg Dobbertin v France, Abdoellah v Netherlands, Adiletta et al v Italy).

The prosecutors’ passive behaviour is, in and of itself, sufficient cause to rescind the decision to arrest in absentia. Rescinding the warrant would force the prosecutors to interrogate Assange. They will no longer be able to hide behind the claim that the arrest must first be executed. We refer to our previous submissions on this point.

6. RELATING TO THE RISK OF EXTRADITION TO THE US, ETC.

In filing 10, the prosecutors argue that Ecuador’s decision on political asylum does not carry with it immunity from the Swedish preliminary investigation, which we have never argued. Julian Assange wants the preliminary investigation to be progressed so that the unfounded suspicions against him are dispelled and his deprivation of liberty comes to an end. This is why he has repeatedly requested to be questioned in London. What Assange wants to avoid is to have to remain in the embassy for the foreseeable future.

The prosecution also tries to take issue with not being aware of any formal United States warrant to the United Kingdom for Julian Asange’s extradition.

The fact that there is an ongoing preliminary investigation in the United States against Julian Assange and WikiLeaks is clear from Michael Ratner’s affidavit (see the appeal). Chelsea Manning, a former US army private, has been sentenced to 35 years for being an alleged source of WikiLeaks. The video that was played in the District Court (which is submitted to the Court of Appeal in the form of the provided URL) clearly shows that leading decision-makers in the United States have repeatedly stated that there is an intention to prosecute Assange in the United States.

There is therefore no doubt that Assange runs a concrete risk of extradition to the United States where he would face the same treatment as Manning. Ecuador has granted Assange political Asylum to avoid the risk that the same fate befalls Assange. It is not for the prosecutor or the court to question this decision, which has been developed already in the appeal, see p. 10.

The fact that the United States is standing by is not unusual when it intends to extradite a person. Federal investigations often remain ongoing in secret for many years before an indictment becomes public. It is also normal to wait until the secret federal investigation is finished before issuing a request for extradition. Another reason is the rule on precedence in the United Kingdom which means that a US extradition order would not be dealt with until the matter of extradition to Sweden is finalised, see the affidavit of John Jones, appendix 2.

7. SUPPLEMENTS DUE TO THE DECISION BY THE COURT OF APPEAL NOT TO HOLD AN ORAL HEARING

A consequence of the Court of Appeal’s decision not to hold an oral hearing is that the film that we showed during the District Court hearing cannot be shown before the Court of Appeal. We therefore provide the link to the video http://www.youtube.com/watch?v=b-DIZvcK6Rc.

Assange makes a motion that the Court of Appeal views the video in the link.

17 October 2014

Thomas Olsson Per E Samuelson