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Assange Appeal Response 7 Nov


To:
Svea court of appeal
Department 1

RESPONSE

Case Ö 8290-14: Julian Assange ./. Söderort prosecution authority in Stockholm

On occasion of the statement by the prosecutor in filing 21, we, as representatives of Assange, submit the following.

1. SMS AND PRELIMINARY RULINGS

The regulation of the suspect’s right to insight into an investigation, per chapter 24 § 9a of the trial code, is for the purpose of strengthening the ability of the suspect to defend against, and challenge, a decision on deprivation of liberty. This is per se a right to have access to documents and other materials used in the preliminary investigation which can be important for the suspect’s defence. It is not up to the prosecutor or the court to decide whether materials are relevant to a decision – it must be sufficient for there to be a possibility, that the materials can be the basis of challenging a decision, for the right to insight to be applicable.

From the purpose of the regulation, it follows that the right to insight can only be exercised in an effective manner if the suspect is also given an opportunity to cite the materials in a decision on deprivation of liberty. Submission of these materials must be seen as a necessary prerequisite for the court to be able to evaluate them and attribute their true importance in a ruling. An oral account of the materials, or written notes on an oral account of the contents of the materials, of course cannot be given the same relevance as the materials themselves.

In the opinion of the defence, it then follows, from the right to insight per chapter 24 § 9a of the trial code, that the prosecutor may not enjoy sole access to all materials once the suspect has had access to those materials believed to be of importance, but instead has a duty to share all those materials with the defence. Otherwise the suspect is effectively denied a right set out in EU legal directives.

2. OBSTACLES TO EXECUTION

It is undisputed between the parties that there exists an obstacle to execution.

In filing 21 the prosecutor states however that what she is conceding is a temporary obstacle to execution. Yet she doesn’t explain what she means by ‘temporary’.

Nor is there any legal distinction between an obstacle that’s temporary and an obstacle that’s permanent. Even less are there any specific legal consequences to how one judges an obstacle to execution to be temporary or permanent.

The obstacle to execution in this case has been in effect for more than two years (since June 2012) and will, as far as anyone can know, continue for several years more if the deprivation of liberty continues.

Even if such a situation can – at a stretch – be described as ‘temporary’, the description still has no relevance when judging a detention in absence.

Instead, all the actual circumstances that comprise the obstacle to execution (whereof the time factor is but one of many) must be subsumed according to relevant judicial rules.

We have previously submitted a thorough account for these circumstances. There is no reason to repeat them here.

From this and current legislation (inter alia the principles of needs, goals, and proportionality in the execution phase) it follows that the decision on detention in absence must be rescinded.

Continued detention in absence is in violation of both Swedish law and the European Convention, as we have previously made clear.

Rescinding this coercive action would force the prosecutor to resume her work with the preliminary investigation. She will no longer be able to excuse her passivity by claiming the detention in absence must first be executed.

Friday 7 November 2014

Thomas Olsson         Per E Samuelson