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Supreme court appeal review

PROTOCOL
For appeal review
DATE OF RULING
2015-04-28 Stockholm
File 32
Case Ö 5880-14

JUSTICES PRESENT
Ann-Christine Lindeblad, Gudmund Toijer (referend), Ingemar Persson, Svante O Johansson and Lars Edlund

PRESENTER, KEEPER OF MINUTES
Charlotte Edvardsson

APPELLANT
Julian Assange, 710703
Deprivation of liberty: detained in absentia
Ecuador Embassy London
Flat 3 B, 3 Hans Crescent
London, SW1X 0NT
Great Britain

Representative: Attorney Thomas Olsson
Fria Advokater KB
Box 12706
112 94 Stockholm

Representative: Attorney Per E Samuelson
Law Firm Samuelson, Schönmeyr & Wall HB
Box 12704
112 94 Stockholm

ADVERSARY
Prosecutor-General
Box 5553
114 85 Stockholm

CONCERNING
Detention et al.

DECISION APPEALED
Decision of Svea Court of Appeal 2014-11-20, case Ö 8290-14

The matter presented here is in regards to permission to appeal.

Julian Assange has requested that the Supreme Court obtain a preliminary ruling from the European Court. But there have been no issues in the case which are in doubt regarding the interpretation of EU law that make it necessary to obtain a preliminary ruling in order to arrive at a decision. Request denied.

The Supreme Court will grant permission to appeal in the matter of detention. The decisions of the Court of Appeal are otherwise upheld.

______________________________
Charlotte Edvardsson
Presented 2015-04-22 and 2015-04-28
Submitted for expedition 2015-04-28

______________________________
Ann-Christine Lindeblad

Swedish legal expert speaks out on Assange case

This interview took place on the Swedish public service television news programme Aktuellt the same evening it became known that Marianne Ny would conduct interrogations with Assange in London.

Stefan Wahlberg is editor-in-chief of Dagens Juridik, Sweden’s leading outlet for legal news, published by Blendow Lexnova, a judicial information service that monitors trials, rulings, and judicial literature both locally and globally.

In this short two-minute segment, Stefan Wahlberg talks with Aktuellt presenter Cecilia Gralde.

CG: Assange will be questioned in London. But that decision should have been made a long time ago, according to an expert here on Aktuellt.

Stefan Wahlberg, editor-in-chief of Dagens Juridik, was here in the studio earlier today, and he says the decision should have been made much earlier.

SW: It’s excellent if this interrogation takes place as soon as possible, so the preliminary investigation can be completed and a decision can be made whether the case is to continue or be closed. And in my opinion, this interrogation should have been conducted much earlier.

CG: Why?

SW: Because this is an absolute fundamental principle of jurisprudence, namely that one moves forward swiftly in such circumstances. Everyone benefits – the complainants, the state, the taxpayers, and last but not least: the accused. For the accused has a right to have crimes, for which he is suspected, investigated as swiftly as possible.

CG: But at the same time, there is a principle that one should be present for interrogations. Why should this not apply to Assange?

SW: Because he actually has no responsibility to participate as suspect in an investigation – but he does have the right to not participate. This follows from a fundamental principle laid out by, amongst others, the European Commission. It’s the prosecutor who conducts investigations, it’s the prosecutor who has a responsibility to see that an interrogation is held with the suspect. It’s not the suspect’s responsibility to see that the prosecutor fulfills her duties.

CG: So this principle doesn’t apply to everyone?

SW: You mean if there’s a principle that Julian Assange should have a duty to be present for questioning?

CG: No, I mean generally – that suspects don’t have a duty to be present for questioning.

SW: No, there is no such responsibility. But on the other hand, one can say that for a suspect, it can be a good way to get the preliminary investigation completed as soon as possible. Absolutely.

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.

Sweden’s Supreme Court Solicits Opinion of Prosecutor-General

Sweden’s Supreme Court, which received the weighty appeal from Assange lawyers Olsson and Samuelson last week, opted today to get further information from the country’s prosecutor-general Anders Perklev.

http://www.hogstadomstolen.se/mer-om-hogsta-domstolen/nyheter-fran-hogsta-domstolen/the-supreme-court-requests-an-opinion-from-the-prosecutor-general-concerning-the-pre-trial-detention-of-julian-assange/

The brief notice, below the bold, says only the following.

The Supreme Court has on 10 March 2015 requested an opinion from the Prosecutor-General concerning Assange’s appeal, especially regarding the investigatory procedure and the principle of proportionality.

The original Swedish version reveals a bit more.

http://www.hogstadomstolen.se/mer-om-hogsta-domstolen/nyheter-fran-hogsta-domstolen/hogsta-domstolen-begar-yttrande-fran-riksaklagaren-om-haktningen-av-julian-assange/

Högsta domstolen har den 10 mars 2015 förordnat att riksåklagaren skyndsamt ska inkomma med svarsskrivelse i målet, särskilt gällande frågan om bedrivandet av utredningsarbetet och proportionalitetsprincipen.

The Supreme Court has on 10 March 2015 directed the Prosecutor-General to submit a written reply especially regarding how the case is proceeding and the principle of proportionality.

Almost the same thing, but some parts may have been lost in translation.

The Svea appeals court did uphold the warrant last autumn, but they also admonished prosecutor Marianne Ny to ‘get going’ and to travel to London to interrogate Assange if that’s what’s needed.

Marianne Ny has admitted that nothing’s been done in the case for four years.

The whole world is listening

A former Swedish prosecutor, a supreme court justice, legendary anti-corruption crusader Eva Joly, and 59 (fifty-nine) human rights organisations, amongst others, have signed onto Marianne Ny expediting the matter and resolving the stalemate. But Marianne Ny has done nothing.

It was expected that something had to happen by now, what with the admonition of the appeals court, but Marianne Ny seems to be defying her own judicial system.

The paperwork sent to the supreme court by Olsson and Samuelson makes it patently clear that they are already looking ahead to a possible next step, namely bringing the matter before the European Court of Human Rights.

And in that context, the directive of the Swedish supreme court to prosecutor-general Perklev makes sense – there can be other higher-ranked judicial authorities reviewing the case soon, and Sweden’s supreme court justices want to make sure they come off as squeaky clean.

If that’s any longer possible.

All the documents, including the submission to Sweden’s supreme court, are found here.

https://justice4assange.com/assange-files-case-to-dismiss.html

The Julian Assange case is Sweden’s longest running pre-trial, pre-charge deprivation of liberty. Julian Assange is in a legal no-man’s-land: he has not been indicted, and so cannot formally defend himself.

Rape Debate Doesn’t Help Victims

Translated from Dagens Juridik, first published 2009-08-21.

A few times a year there’s a trial or a verdict that has all the ingredients necessary to start media frenzy. The conditions seem to be that the right perp rapes the right victim at the right place, and that the news media aren’t already sick and tired of more news about more rapes. The daily media have the power to create debate about things that can have real consequences for legal praxis. But unfortunately the pattern is all too often the following.

Svenska Dagbladet, regarded by many jurists as ‘their paper’, prints an article about the incident. The comments are full of innuendoes about ‘incompetent judges’. The paper (Svenska Dagbladet – SvD) links to bloggers who wonder how one proceeds when it’s one person’s word against another’s, but who ultimately conclude that ‘rape is rape’. There’s not much more that happens at this point – it’s hard for the public to know if the case is about a real rape or just one of the usual kind.

Professor emerita Madeleine Leijonhufvud reads the article and is very upset. With perhaps the help of professor Christian Diesen she pens an op-ed demanding a little of this, a little of that. The editors of SvD know from experience that the debate that ensues will generate an entire week of op-eds signed by members of Sweden’s judicial elite. The frenzy has begun.

We saw this two years ago in conjunction with the so-called ‘Stureplan profiles‘. Leijonhufvud and Diesen proposed back then that there be a ‘consent’ rule put in the law books. Everyone was provoked. One was prosecutor Rolf Hillegren who together with three coauthors dismissed the opinions of the professors as totally alien for all active jurists.

The ‘Stureplan profiles’ were hung out in the blogosphere before a verdict was returned. The editor-in-chief for ‘City‘, Michael Nestius, wrote that of course he didn’t know how the law worked, but the defendants must be convicted and the law must be changed if they couldn’t otherwise be found guilty. At the same time, the Publicist Club had a panel discussion on the subject. Television personality Hasse Aro condemned Swedish populism. Attorney Per E Samuelsson tried to offer a nuanced explanation, namely that there’s a difference between what’s transpired and what can be proven with evidence, and why rape victims have to answer uncomfortable questions in court.

Acquitted in the district court, the defendants were tried again in the appeal court and sentenced to four years prison. They were denied appeal to the supreme court. SvD’s Paulina Neuding laments the media frenzy. Time moves on, the discussion fizzles out. For 2008 and half of 2009, the media are too busy with murder trials and file-sharing.

And then it happens. On 14 August, SvD declares that the ‘new praxis’ of the supreme court as of 3 July means that ‘men previously convicted of rape will now be acquitted’. Justice Johan Munck denies, backed by a president of an appeal court and a PhD student in procedural law, that judges would have greater power in terms of setting precedents. Hadn’t it been for the comment by district prosecutor Rolf Hillegren at the end of the article, it might have stopped there. The journalist reproduces the fantastically provocative comment word for word, and I quote:

When one says ‘rape’, one thinks mostly of really gruesome rapes. But if you take a man and a woman who know each other and the woman says she’s not in the mood today, but the man wants to go ahead anyway. Sure it’s not fair, but it’s probably not worth two years in prison. It’s more on the level of a traffic violation.

The people who comment are angry. The bloggers are even more angry. But angriest of all is former Pirate Bay spokesperson Peter Sunde who, equipped with new skills in criminal law thanks to being sentenced to prison by a district court, files a complaint with the Ombudsman for Justice against Rolf Hillegren.

The frenzy reaches its height when SvD, three days after the first article, publishes the verdict of Madeleine Leijonhufvud: Rolf Hillegren has to go. Leijonhufvud is able to get some people to listen to her demand. No one’s going to sympathise with a middle-aged male prosecutor who trivialises rape in the national media.

When it comes to Hillegren’s position as prosecutor, it’s another matter. There are no rules of ethics for prosecutors corresponding to the rules lawyers have to follow. It’s very difficult to sack or replace a prosecutor. Ask Per E Samuelsson: he’s tried. Hillegren’s comment was inappropriate, but if the prosecutor in question hasn’t even been accused of professional misconduct, it’s pointless to demand his resignation. Both Leijonhufvud and SvD are aware of this.

The term ‘professional misconduct’ isn’t even used until Borgström and Bodström publish their op-ed on Thursday, and they only mention it in all haste and in passing. The prosecution authority made a half-hearted attempt to appear decisive: SvD can report that Hillegren will no longer adjudicate sex cases. That agreement was reached long before the comment that started the frenzy.

Despite this, the matter of Hillegren’s position was high on the agenda this past week. Everybody had something to say. It seems such a waste that the cream of Sweden’s jurists and professional pundits should spend an entire week thinking about something that in no way can ever help a rape victim.

At the same time as the trial of the ‘Stureplan profiles’, there was another rape trial in the Stockholm district court. An immigrant woman and her children had for more than ten years been abused with pliers, planks, burning matches, and heated knives and scissors. The woman, who was forbidden to seek medical help as she’d then be treated by a male practician, was raped a couple of times per week. The mentally ill man’s former wife had, for some unknown reason, committed suicide. This woman considered the same escape route, but chose to go on living for the sake of her children.

It’s not self-evident that this type of case gets reported. In this case, the perp was sentenced to eight years prison. The crime had gone on for over ten years. There are things that are more important in a debate on rape than the private views of a professor. But this type of rape can’t create media frenzy. Wrong perp, wrong victim, wrong place, wrong time.

This year, Swedish law will process 250 cases of rape. This is an infinitesimal fraction of the total number of convictions for assault. And the hidden statistic is of course great. The debate subsides. But it will return. Somewhere a man is going to have sex even though the woman really doesn’t want to.

Appeals court: question Assange in London!

Julian Assange shall remain detained in his absence, the Svea court of appeal ruled today. But the court also admonished prosecutor Marianne Ny to question the WikiLeaks founder in London at the Ecuador embassy.

‘It’s her responsibility if the case comes to a halt, and it’s come to a halt’, said court magistrate Niclas Wågnert.

The court admonished prosecutor Marianne Ny to test ‘alternative means’ to move the investigation forward.

What do you mean by ‘alternative means’?

‘That’s up to her. One way would be to just question him in London.’

It was in July this year that the district court ruled that Assange should remain detained in his absence. The ruling was appealed. Today the appeals court upheld the previous ruling.

‘He was of course disappointed’, says attorney Per E Samuelson.

Samuelson was also instructed to continue to the supreme court.

‘We’ll now study the appeals court ruling in detail and then submit our appeal.’

International pressure to question Assange in London has increased, says Joakim Nergelius, professor at the University of Örebro.

‘We’ve got signals to the effect, not in the least from the British police, that they don’t want to go on guarding the embassy.’

Nergelius says that the appeals court clearly criticised Marianne Ny.

‘You have to see this as a very sharp criticism. And there are things to criticise. Marianne Ny has a duty to move the case forward. It’s in no one’s interest to let things drag on like this for years.’

Nergelius points out that Assange has been waiting in the embassy for two and one half years.

‘That Marianne Ny doesn’t lift a finger to question him there but only says she can’t do it that way – but never explains why – that’s rather remarkable.’

Samuelson interprets the court admonishment of Ny as a sign that they understand she is on thin ice.

‘We were proven right indirectly, but the court didn’t have the civil courage to put their feet down as they should have and rescind the warrant.’

Assange’s request to be given copies of the infamous SMS messages, as well as his request for a preliminary ruling from the European Court, were denied.

Postscript: Statement by Marianne Ny

The Svea court of appeal ruled today that Julian Assange shall remain detained in his absence, on probable cause suspected of lesser rape, unlawful coercion, and two counts of sexual molestation.

‘Julian Assange has of his own accord evaded justice by fleeing to the Ecuador embassy’, said Marianne Ny. ‘My position has been, and still is, that he needs to be available in Sweden for the continuation of the process and a possible trial for the crimes he’s suspected of in Sweden in August 2010.’

The court of appeal ascertained however that the investigation had come to a halt, and they find that the negligence of the prosecutor’s office to test alternative means is in violation of their duty to keep the case moving forward.

‘This has been a complicated case’, says Marianne Ny. ‘And we have continually evaluated this issue. As the appeals court pointed out, there’s all reason to continue to evaluate how the case can be made to move forward.’

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

Time to go to London, Marianne Ny!

From the Swedish original by Expressen’s Mats Larsson.

The British government have grown tired of the circus surrounding Julian Assange. The message from Great Britain’s vice minister for foreign affairs, to Marianne Ny, couldn’t be clearer. Go to London, for heaven’s sake!

Ecuador’s embassy is located in one of London’s best neighbourhoods, a stone’s throw from Harrods. Those four or five British constables stationed outside the embassy have one of the city’s most boring jobs – they’re there should Julian Assange decide to do a runner.

But he’s not about to do a runner. The constables hardly catch a glimpse of him either – he’s shown up on that balcony only a few times.

But of course this exercise costs a lot of money. That’s likely one of the reasons the Brits have tired of it. Another reason is that it’s untenable to let Assange live in a limbo inside that embassy. He’s not even been charged!

Marianne Ny wants to question him in regards to allegations of ‘lesser rape’ and sexual coercion. But Assange doesn’t dare come to Sweden – he’s afraid he’ll be sent straight away to the US.

Ny’s always insisted on conducting the interrogation in Sweden. Assange and his legal team say the interrogation can just as well take place in London.

And now even the British government – in the person of Assistant Minister for Foreign Affairs Hugo Swire – have come out on Assange’s side. (We should remember the British government aren’t otherwise big fans of WikiLeaks.)

This is what Hugo Swire said in Commons on Tuesday:

Let me make it clear to this house: if she wished to travel here to question Mr Assange in the embassy in London, we would do absolutely everything in order to facilitate that – indeed, we would actively welcome it!

In other words, Marianne Ny, it’s time to go to London. Do it now!

It can hardly be a coincidence that this signal from Great Britain comes but one week before the Svea court of appeal hearing on the Assange motion to have the detention order rescinded.

Assange lost in the district court this past summer, but he’s appealed that decision. And in August, Ecuador’s Minister for Foreign Affairs Ricardo Patiño traveled both to the UK and to Sweden, to try to break the deadlock.

But we’ve all grown tired of this circus. It’s high time to find a solution.

Assange Appeal Prosecutor Response 27 Oct

SVEA COURT OF APPEAL SUBMISSION
Dept 01
2014-10-27
Filing 22
Case Ö 8290-14
Sector 0102
AM-131226-10

Julian Assange ./. Söderort Prosecution Authority in Stockholm

Re: detention

_________________________________________________________________________

RESPONSE

We continue to oppose the request that the court of appeal shall rescind the decision for detention of Julian Assange.

We have been asked to submit statements on two aspects. Our responses are further developed under ‘Grounds’.

1. We oppose the injunction that we submit the documents containing the SMS traffic to Julian Assange or the court of appeal.

2. We see no reason for the court of appeal to obtain a preliminary ruling from the European Court regarding interpretation of article 7 of directive 2012/13/EU of the European parliament and the European council dated 22 May 2012.

Grounds

SMS traffic

The defence attorneys have, when requested, been given access to the SMS traffic in question. The messages have been made available to the defence in a way that is in direct accordance with the formulation of article 7 of the directive 2012/13/EU. The defence attorneys have been given access to the documents which contain the SMS traffic of the complainants by letting them read these documents at the police station. The most recent occasion this happened was on 15 July 2014, and for two hours. To make it easier for the attorneys to cite those portions they deemed relevant, they were given copies of the documents during the oral proceedings. So it is not true that they’ve only been given the opportunity to analyse and study them during the current detention hearings. The SMS traffic that’s relevant for judging probable cause has been accounted in the supplements to the district court. Together with the written materials the court of appeal already has, they constitute in our opinion a sufficient documentation to judge probable cause.

As previously stated, the defence have also had access to the detention memo which was collated for the detention hearing of 18 November 2010.

We still maintain (compare our statement to the district court 1 July 2014) that the duty to inform according to chap 24 § 9a in the trial code pertains only to the duty of the prosecutor to reveal the circumstances that are the basis of a deprivation of liberty for the suspect. We have, by supplying written documents to Julian Assange’s defence attorneys, and by letting them look at the SMS traffic in a police station, fulfilled the requirements of article 7 of the directive. The reason we oppose the release of copies of the documents with the SMS traffic is found in our response to the court of appeal dated 23 September 2014.

Preliminary ruling from the European Court?

Article 7 says that documents held by the authorities which concern the case in question and which are vital, in accordance with national law, for effectively challenging the legality of the arrest or the detention, shall be made available for the suspect deprived of liberty. In the preparatory work for chap 24 § 9a of the trial code, it’s mentioned that the materials that are the basis of the deprivation of liberty shall be made available to the suspect. Julian Assange is not per se deprived of liberty but has as explained above been given access to materials from the investigation that give him the opportunity to challenge the detention decision. Therefore in our opinion there is no reason to request a preliminary ruling from the European Court.

Further comments

We agree that for now there’s a temporary obstacle to execution, but this in itself does not constitute an obstacle to a decision on continued detention. We have otherwise nothing to add, but refer to our response to the district court dated 1 July 2014 and our response to the court of appeal dated 23 September 2014.

Marianne Ny

                                      Ingrid Isgren

Julian Assange prisoner of circumstance

Translated from the Swedish original by Henrik Alexandersson.

The WikiLeaks founder and editor-in-chief is sitting where he’s sitting, at the Ecuador embassy in London. Are there possibly forces that want him to remain there – to minimise his visibility and to disrupt WikiLeaks operations?

Assange is afraid that if he’s sent to Sweden, where the prosecutor wants to interrogate him, he’ll be sent to the US on that country’s exclusive ‘temporary surrender’ agreement. (This is a risk he already runs in the UK if the Swedish warrant’s withdrawn, so the logic doesn’t seem crystal clear.)

But Assange’s worries – that the US will try to get him – do have substance. It’s been shown that a preliminary process has been underway for a long time, long before US authorities wanted to admit. And we have to keep in mind that the whistleblower Chelsea Manning was sentenced to 35 years prison for leaking information to WikiLeaks.

But the Swedish prosecutor Marianne Ny obstinately refuses to travel to London to conduct an interrogation with Assange. Such an interrogation would in all likelihood be the end of this extremely thin sex crime case, according to the preliminary investigation.

Marianne Ny speculates that Assange perhaps doesn’t want to answer her questions. (But it must be pointed out that the European Convention gives everyone the right to refuse to answer questions in all circumstances in criminal investigations and trials.) Marianne Ny also claims that Assange perhaps won’t go along with DNA swabbing. But this is pure speculation. And it feels rather unreal, as Assange wants to be interrogated in London in order to sort the matter out and get the European Arrest Warrant withdrawn.

[It should also be pointed out that Assange’s DNA is already on file with British police as of December 2010. Marianne Ny knows she needs only contact them. This in turn makes her claim in this regard even more disingenuous.]

The question asked more and more often is whether Sweden and Marianne Ny are trying to keep Julian Assange in that no man’s land in London in order to disrupt the work of WikiLeaks. Or if they’re informally cooperating with someone else who does, and for the same reason.

That question is justified. This is a high profile case of geopolitical significance. Prosecutors and police often travel abroad to conduct interrogations. So it wouldn’t be in any way unusual if it were to take place here. But Marianne Ny refuses.

What makes the Assange case so special is that he is actually not treated as other suspects – and it’s obviously because of who he is.

We must not forget that one high level prosecutor already closed the investigation – that is, before Marianne Ny came along to breathe new life into it.

And at the time, and whilst still in Sweden, Assange cooperated voluntarily with the police for interrogation.

Assange was told by Marianne Ny that it was OK to leave the country. He’d already left the country by the time Marianne Ny told his lawyer she wanted him back for questioning. Assange left the country completely openly, was not stopped at exit. This happened with intrigue whatsoever, and using ordinary means of transport.

Assange even offered (before entering Ecuador’s embassy) to be questioned at the Swedish embassy in London. And he is willing to be interrogated where he is today. All that’s stopping this is Marianne Ny’s prestige, obstinacy, and unwillingness.

During this process, Marianne Ny capitalised on Assange’s fear of being surrendered to the US to force him into a corner where she could use the European Arrest Warrant to limit his mobility and visibility, as well as WikiLeaks operations.

No matter if it was planned like this or it just turned out like this: this development is highly unfortunate, and in many ways.

One can in this context note that the same international organisations that have criticised Sweden for the country’s inhumanely long pre-trial detention times have even complained to the United Nations about Sweden’s treatment of Assange.

http://www.aftonbladet.se/nyheter/article19069748.ab

Without getting into conspiracy theories, it’s today established that the US, only a few days before the Swedish case against Assange began, actually pressured countries with a military presence in Afghanistan (and this includes ‘neutral’ Sweden) to bring criminal charges against Julian Assange (for something, for anything). Perhaps it’s only coincidence, but then it’s very interesting coincidence, in many ways.

How the country’s new red-green government will treat the matter is still not known, but it’s not a particularly bold guess that they’ll cuddle cosily in the US corner.

This sinister farce has to end.