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The prosecutor in the Assange case should be replaced

Marianne Ny has increasingly painted herself into a corner. Is it even possible to imagine that she, after completing interviews with Assange in London, concludes that the case should be closed? By former prosecutor Rolf Hillegren.

On 19 June 2012 Julian Assange took refuge in Ecuador’s embassy in London, and on 16 August the same year he was granted political asylum in Ecuador. Since then, it should have been clear to most people – except for public prosecutor Marianne Ny – that Assange did not intend to voluntarily waive his asylum and go to Sweden where, since November 2010, he is detained in absentia. The prosecutor has simply failed to act on the unique situation that’s arisen since Assange entered the embassy. She has consistently maintained that the only way to move the investigation forward was by conducting the questioning in Sweden.

The detention decision was appealed but upheld by the Court of Appeal in 2010. In conjunction with the new appeal in November 2014, the Court of Appeal found that Assange should remain detained in absentia, but stated that the prosecutor’s failure to consider alternative means was not consistent with her obligation to move the investigation forward. This was ignored by the prosecutor, despite her claim that the matter was continuously reevaluated.

The Court of Appeal’s decision was appealed to the Supreme Court, and on 10 March 2015, the Supreme Court directed Prosecutor-General Anders Perklev to submit his view of the matter, in particular with regard to the progress in the investigation and observance of the principle of proportionality.

Then suddenly prosecutor Marianne Ny changed her mind. Only three days later, she decided that the hearings could indeed be held in London. By way of clarification, she stated that some of the crimes were approaching their statutes of limitation. But she added that there would be a ‘loss of quality’ when conducting the interrogations in London. Apparently she overlooked the fact that her own delays have had negative effects as well.

I was a prosecutor for years, and have years of experience listening to questionable corrections and constructions after the fact. And to me, Marianne Ny’s explanation for her change of position is unconvincing.

Her lack of action over the past few years can only indicate that she harbours the bias that further questioning of Assange can only lead to his prosecution. But that’s not the way a prosecutor should behave.

Prosecutors must remain completely unbiased and be constantly prepared for the unexpected. It’s very common – particularly in sexual offence cases – that the investigation is closed on the grounds that the crimes cannot be substantiated. The prosecutor seems to have completely disregarded this possibility in the Assange case. This is especially remarkable, as the evidence is rather dubious, as anyone can see, with the preliminary investigation available online.

If Marianne Ny had acted in the only reasonable way, she would have questioned Assange as soon as possible in autumn 2012. The most likely scenario would be that she then found reason to close the case, on the grounds that the crimes could not be substantiated. So as it stands, there are many indications that Assange has so far spent over two and a half years at the embassy in vain.

The thing is that it was quite possible to interrogate him in London long before he went to the embassy. It’s not good enough, as some would have it, to say ‘he has himself to blame’.

The prosecutor is solely responsible for seeing the investigation moves forward, and it’s her duty to remain objective throughout – which makes it a delicate task. For it’s just as likely an innocent person is unfairly treated as it is a complainant, if the investigation is not conducted expeditiously.

Should the prosecutor, on the other hand, decide after the interrogation to bring the case to court, the stalemate is still there, but her own behaviour wouldn’t be as questionable. But it wouldn’t have been entirely unobjectionable: suffice it to remind everyone that a very experienced prosecutor (Eva Finné) closed the case the first time in 2010, and I’m convinced that the majority of the country’s senior prosecutors would have done the same.

As the years have gone by, the prosecutor’s prestige and passivity increasingly painted her into a corner with no honourable way out. Is it even possible to imagine that Marianne Ny, after completing interviews with Assange in London, concludes that the case should be closed? Think of the criticism she’ll suffer. Think of the criticism that will be directed at the prosecution authority.

Given that prosecutor Marianne Ny has so far demonstrated a lack of objectivity and conducted the investigation in violation of her duties and accepted practice, there is an imminent risk that the questioning in London will lead her to – against her own better judgment and for her own prestige – find that the case should be brought to court. Should this happen, there’s still the possibility that the Supreme Court will rescind the arrest, with regard to the principle of proportionality and a realisation that Assange won’t come to Sweden voluntarily.

If the arrest on the other hand is not rescinded, Assange will likely remain at the embassy, and the time for the total judicial scandal will be further postponed.

Ideally, Marianne Ny should realise that she should leave the investigation and be replaced by someone completely outside her sphere of control. If she doesn’t realise this, then the Prosecutor-General should act, and refer the case to a new prosecutor – preferably one with high integrity. It is also remarkable that a chief prosecutor, after reopening a case that’s already been closed, appoints herself as its lead investigator. This is not common.

No matter how this case ends, it’s evident that it already qualifies as a judicial scandal. Through her actions, prosecutor Marianne Ny has created a situation far more serious than the crimes for which Assange is accused. And because the case has attracted such international attention, she’s not only drawn ridicule on the prosecution authority, she’s also disgraced our country – a feat few criminal suspects can achieve.

ROLF HILLEGREN

Former Prosecutor

Translated from the original by Assange in Sweden.