On 17 December 2010, in the wake of their interception of the Swedish police documents in the Assange case sent by Swedish attorney Björn Hurtig to Jennifer Robinson then at FSI, the Guardian published a series of articles, one of which was written by Esther Addley. 17 December 2010 is a long time ago – nearly six years – but one thing sticks out immediately when revisiting.
Mr Justice Ouseley, the head of the administrative court who rejected the appeal against Assange’s bail, acknowledged the dispute in his judgment: “There is a debate, which may yet be had elsewhere, over whether the warrant is a warrant for questioning or a warrant for trial.” He was proceeding, he said, on the basis that it was an extradition warrant for trial. A charge by the requesting country is a prerequisite for a valid EAW.
Say what you want about Assange or WikiLeaks, but there is no debate. A UK court magistrate should know that before making an official statement. The facts of the matter are as follows.
Many in the world around have commented negatively on Swedish legal procedures, and with good reason. Sweden has indefinite detention, prosecutors are not bound to issue charges before beginning an investigation, suspects can be kept in indefinite detention with restrictions, completely incommunicado if they wish and for as long as the “state” wishes. Courts must formally approve extensions on detention on a regular basis, but this is a rubber stamp process. At least one suspect in recent years was held in indefinite detention for over three years before being released – that’s to say before the prosecutors admitted they had no case. Prosecutors can engage in “wild goose chases” if they so wish, a strategy that’s often been used to attempt to implicate people they know to be innocent, this only to save face. The wheels of justice can grind excruciatingly slowly in Sweden.
That being said, there are certain rules that do exist. There are rules that normally must be obeyed.
As in other countries, crimes are divided into two major categories: felonies and misdemeanours, where the former are considered the more serious. And some crimes, usually the felonies, are further categorised as “crimes against the state”, what Claes Borgström called crimes calling for “public prosecution”, which is a direct translation of the Swedish term allmänt åtal. In these cases, the “state” is the formal plaintiff.
The rules change somewhat here. Victims don’t file complaints – the state does. With ordinary crimes, a victim can withdraw a complaint, but victims cannot withdraw complaints when the state is the plaintiff. Only the state can.
This is not to say that a victim cannot make an investigation disappear. On the contrary: all a victim has to do is change the testimony; if this is done in a convincing manner (and it often is) then the police investigator will of course close things down.
Swedish prosecutors are given free rein to conduct their investigations however they want. They can let a case file sit and collect dust on their desks however long they want; they simply need to tell the courts that they’re working hard, and the rubber stamp is applied to an extension on the detention of the suspect.
This can also be considered to be what’s happened over the years in the Assange case. No one really looked at Marianne Ny’s submitted documents. Courts take prosecutors at their word.
It can take prosecutors a long time to complete an investigation and arrive at a decision whether to take a case to court. The “rule” is that a prosecutor must take a case to court if the assessment is that a case can be “proven”. A prosecutor may not take a case to court if the assessment is otherwise.
That “rule” is theoretically very strict, and prosecutors can theoretically suffer dire consequences if they defy this rule, but in practice it’s very difficult to prove malfeasance. Recent judicial scandals in Sweden serve to demonstrate this.
The cases of Catrine da Costa, Billy Butt, and above all Thomas Quick are ample proof that the above rule can be treated with defiance.
(Sweden also allows what may be referred to as “free evidentiary evaluation” (fri bevisvärdering), meaning prosecutors – and courts – can mix together several forms of “evidence”, such as hearsay, that aren’t even permitted in more stringent national judicial systems.)
The case of Catrine da Costa depended on the testimony of four year old girl recalling events that happened when she was but one and one half years old. The case of Billy Butt depended on hilariously concocted testimony and the defendant’s “singular appearance” (Butt is an Indian, and the Court of Appeal conjectured that no Swedish girl would have willingly had sex with someone who looked like him). The eight cases of Thomas Quick depended solely on confessions by a drugged-out mental patient trying to stay in prison for his own protection.
In all three cases, the prosecutors knew up front that they had no case and they pursued them anyway. They never suffered consequences.
A cornerstone of the Swedish judicial process is the formal serving of notice of coming prosecution. Prosecutors must meet with suspects in person to turn them into defendants.
The suspect is formally “served”: the suspect is told there will be a court case – and for the first time, the prosecutors have to go “all in”: they must at this point share all “evidence” with the suspect (and the suspect’s attorneys).
There is also something called slasken, which is the body of evidence the prosecutors have accumulated but will not be using in court. This slasken need not be shared with the defence. The prosecutors are also legally able to destroy the slasken.
(This one of the reasons Assange attorneys Thomas Olsson and Per E Samuelson have pushed so hard to get the notorious SMS messages put into court records – as once there, they are a matter of public record and cannot be removed by a prosecutor. Those who have seen the messages claim those messages contain decisive exculpatory evidence, with former Assange attorney Björn Hurtig going so far as to say they make the cast “moot”.)
Rolling the dice
But once the prosecutor makes the decision to prosecute, the Rubicon has been crossed. Alea iacta est. The die is cast. There is no turning back. The defence now has the complete case to be used by the prosecutor, and the case will now go to trial.
To reach this stage in a Swedish criminal judicial process, a prosecutor must meet with the suspect, serve notice to the suspect, and share all evidence.
The suspect may at this point make a statement, which is put into the official record.
All the above is eminently available information. Yes, it’s going to be found in Swedish, but certainly Justice Ouseley could have tasked someone in the United Kingdom with finding that information, instead of – like the silly British armchair anthropologists of old – simply proceeding on conjecture, on a guess. As Ouseley stated himself:
A charge by the requesting country is a prerequisite for a valid EAW.
– Justice Ouseley
The EAW is a very important piece of legislation. Proper application could have been carried out with due diligence and the greatest of ease. But Ouseley says he’s “proceeding on the basis”. Such behaviour is simply not worthy of a British court justice.
On the fence
Marianne Ny stayed on the fence throughout the spring of 2011 when the British court proceedings were underway. Encouraged by Paul Close of the Crown Prosecution Service to not move her case forward, to not question Assange in the UK, as Close feared her case would fall apart, Marianne Ny had to offer substance to Ouseley’s “basis” while at the same time defending herself on the home front in the Swedish media, as everyone in Sweden knows the basic rules of legal procedure as outlined above.
Many pundits have claimed that Marianne Ny hasn’t needed to meet with Assange at all, as he’d already been questioned once (30 August 2010). But this is not the case. That questioning concerned a single misdemanour count (filed by Anna Ardin) whereas Marianne Ny’s new complaint in the case of Anna Ardin had four counts. And no prosecutor had served Assange a notice of prosecution. The “rape” case (Sofia Wilén) had been reopened by Marianne Ny two days after the 30 August questioning.
This is not to say that Assange couldn’t have been “served” all these years. Of course he could have been. Marianne Ny’s reluctance to commit to a decision may be due to how she understands it would limit her options: with no prospect of getting Assange into a Swedish courtroom for the foreseeable future, this would give the defence unlimited time to study the case, with Marianne Ny unable to do anything herself. Keeping her options open, Marianne Ny can keep on doing whatever she wants with the case files and the direction she’s going.
One thing is certain: the decision by Justice Ouseley was incorrect and not worthy of the British courts. “A charge by the requesting country is a prerequisite for a valid EAW”, Ouseley correctly noted.
But there was no such charge. And there still isn’t.