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Five Minutes to Midnight for Marianne Ny in the Land of the Midnight Sun

Time is running out for Marianne Ny. Sweden’s erratic prosecutor waited nearly five years to interrogate Julian Assange until a Swedish court scolded her, and now, through her own bloopers, can’t even effect an interrogation at the last minute. Her initial plan was to have Ingrid Isgren at the Ecuador embassy in June, but as per usual, Marianne Ny hadn’t checked proper procedure. So now, when Ecuador told her how to do things correctly (using her own foreign department for starters) she has to wait until both Ecuador and the UK sort through her ‘legalese’.

(Compare this with her bungling of the original arrest warrant, rejected by British authorities over and over, because she couldn’t fill in the form properly and tick a few boxes.)

The following interview took place this morning on Swedish state radio (SR) with Stefan Wahlberg (SW) who is editor-in-chief of Dagens Juridik, the country’s leading website on Swedish jurisprudence. The interviewer, Cecilia Khavar, is a producer for Swedish state radio.

[Note: this is a rush transcript and may not be in its final form.]

SR: Yes, so, and as we heard this morning on the radio, there’s only a bit more than a month remaining until some of the crimes Julian Assange is accused of here in Sweden reach their statute of limitations. Assange is still at the Ecuador embassy in London and is still arrested in Sweden in absentia with interrogations not being possible. But now we have Stefan Wahlberg, editor-in-chief of Dagens Juridik. Good morning!

SW: Good morning!

SR: What’s with the statute of limitations for these accusations expiring? How does that affect the prosecutor?

SW: Of course it means that the complainant loses the opportunity for retribution if it’s the case that Assange is guilty. But of course Assange is not charged with, much less convicted of, any such crime, so he must be treated as innocent. And then one should be able to presume that prosecutors and police follow their guidelines to ‘swiftly proceed with investigation’ – because both complainant and accused have an interest in seeing matters expedited as quickly as possible.

SR: So why do you think things have come to this impasse?

SW: Well this case is completely unique, isn’t it? And in all possible ways. It’s been extraordinary. Prestige has played a big part. The fact that Assange sought asylum at an embassy is not something they’re accustomed to dealing with. It’s also important to point out that Assange has absolutely no responsibility to contribute to an investigation! So this is not just a matter for the prosecutor, who has complete responsibility to present the case, but also complete responsibility for the prosecutor to EXPEDITE the case, for both the complainants and the accused, AS SWIFTLY AS POSSIBLE. And in my opinion Marianne Ny hasn’t done this.

SR: You say it’s prestige. What do you mean?

SW: Well already from the start things were rather clumsy. First there’s a prosecutor who arrests him, then a day later another prosecutor who rescinds the warrant, then a few days later yet another prosecutor who opens the case again. This was very clumsy – all those prosecutors with radically different opinions. They couldn’t make up their minds if there’d even been crimes committed!

SR: There certainly were varying opinions in the beginning… And then he traveled to London to hide away at the Ecuador embassy, and he’s asked the prosecutor to come to London to interrogate him, and THEY DIDN’T WANT TO DO THAT, and… Oh… Oh… Oh yes, they said that would give Assange preferential treatment, and so forth… And… Well wouldn’t it have been preferential treatment?

SW: But that’s what I’ve been trying to explain to you! This is in the EUROPEAN CONVENTION! That an accused has no responsibility to contribute to an investigation! So the bottom line is it’s the prosecutor who has the responsibility, no one else!

SR: So you’re saying that one should always do this in cases where an accused is outside the country?

SW: Well with our modern communications technology it’s no great exertion for two individuals, police and prosecutor, to get to London, when Assange has in fact been asking for this interrogation all along! But now they’re trying to get it done at five minutes to midnight, right before the statute of limitations takes effect. This isn’t well managed. This isn’t a matter of preferential treatment – this is a matter of straightforward criminal investigation procedure!

SR: I want to add that Julian Assange hasn’t wanted to travel to Sweden to be interrogated here, claiming there’s a risk he can be surrendered to the US by the Swedish authorities. Thank you for your time, Stefan Wahlberg! And we should also say we’ve tried to contact Marianne Ny, but she has refused to respond. We should also point out that the prosecutor had decided to hold an interrogation in London in June, but they’re still waiting for permission from Ecuador.

Note: The impartiality of SR’s reporter Cecilia Khavar is conspicuous in its absence. Trying to get the last word in an interview is cheap, to say the least, and in this case smacks of micromanaged state propaganda.

The matter of Marianne Ny’s latest blunder isn’t as simple as SR reporter Khavar would have her listeners believe. Marianne Ny’s original request to Ecuador was sent at the last minute, and also was sent through the wrong channels – Mutual Legal Assistance (MLA) applications are matters between sovereign states and must be handled by ministries for foreign affairs – not state prosecutors doing legal research.

This is what caused the initial delay – in an application that notwithstanding had to wait five years (and criticism from a Swedish court) to make an appearance.

As with her initial attempt to secure a European Arrest Warrant for Julian Assange back in 2010 – an attempt which failed four times, and could have failed further if she hadn’t called in an ‘expert’ from the US – Marianne Ny isn’t demonstrating any fundamental legal competence.

Marianne Ny’s attempt to make Ecuador a scapegoat at this late stage in the game, to camouflage her own incompetence, when she’s done absolutely nothing for five whole years now, is cheap in the extreme. And it can’t be described as anything but propaganda for the Swedish state radio interviewer to shove misleading comments on the listener at the end after Stefan’s interview is over.

Prosecutor cancels Assange meeting

I have now been detained without charge for 1650 days.

This afternoon, the Swedish prosecutor Marianne Ny cancelled a prospective appointment to take my statement today. We proposed the dates and Ny accepted them. Prosecutor Ny led my lawyers to believe that the appointment was proceeding. My lawyers had booked tickets and I have been put to considerable expense. Last year, the Swedish court of appeal found that prosecutor Ny had breached her duty because she had refused to take my statement for four and a half years. The prosecutor waited another seven months before finally accepting my offer to take my statement in London. Today I learned that the Swedish legal application to Ecuador, which is likely to take weeks, was only sent to Ecuador two days ago. To behave in such a way seems reckless and it is hard to imagine that it was more than a public relations exercise. It is impossible to maintain confidence in this prosecutor under such circumstances.

Julian Assange
17 June 2015

Supreme court decision 11 May 2015 (dissenting opinion)

THE SUPREME COURT’S DECISION
Case Ö 5880-14
announced in Stockholm 11 May 2015

APPELLANT
JA
Representative: Attorney TO
Representative: Attorney PES

ADVERSARY
Prosecutor-General
Box 5553
114 85 Stockholm

CONCERNING
Detention

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

__________

THE SUPREME COURT’S DECISION

The Supreme Court rejects the appeal.

THE MOTION BEFORE THE SUPREME COURT

JA has requested that the Supreme Court rescind the detention decision.

JA has also requested that the Supreme Court task the prosecutor with giving him, or giving the Supreme Court, copies of the claimants’ SMS traffic. In the case that the Supreme Court not consider the request, he has secondly requested that the Supreme Court obtain a preliminary judgment from the European Court in regard to Article 7 of the directive of the European Parliament and Council 2012/13/EU 22 May 2012 if the right to information in criminal procedures includes the duty of the prosecutor to turn over copies of the materials shared by the suspect and intended by the suspect to be used as support for a challenge of a decision on deprivation of liberty.

The Prosecutor-General opposes a change to the decision of the Court of Appeal.

The Supreme Court has previously rejected the motion that a preliminary ruling be obtained from the European Court. The Supreme Court has granted permission to appeal the matter of detention, but not granted permission for other appeals.

GROUNDS

Background and the question before the Supreme Court

1. JA was detained in absentia 18 November 2010 because he was on probable cause suspected of unlawful coercion 13-14 August 2010 in Stockholm, of sexual molestation 13-14 August 2010 in Stockholm, of sexual molestation 18 August 2010 or thereabouts in Stockholm, and of lesser rape 17 August 2010 in Enköping. A European Arrest Warrant was expedited and finally ratified by British courts 14 June 2012.

2. Neither the detention decision nor the arrest warrant have been executed. As a result of the detention decision and arrest warrant, JA has been deprived of liberty in Great Britain 7-16 December 2010, and he has had restrictions in Great Britain in the form of electronic surveillance with an ankle bracelet, reporting daily to the police, and prohibited from leaving his place of residence at certain times of the day. JA has since 19 June 2010 been resident at the Ecuador embassy in London.

3. In June 2014 JA moved for the district court to hold a detention hearing and rescind the detention decision. The district court ruled that JA should even in the future be detained. JA appealed the decision of the district court. The court of appeal rejected his appeal. The question now is whether JA should still be detained.

Basic conditions for detention

4. Detention may apply for someone suspected on probable cause of a crime for which prison of at least one year is prescribed, if there exists, with regard to the nature of the crime, the suspect’s situation, or other circumstance, a risk that the suspect abscond or in some other way avoid legal process or sentence (chap 24 § 1 paragraph 1 trial code).

5. The Supreme Court shares the opinioin of the court of appeal that JA is, on probable cause, suspected of unlawful coercion, of two counts of sexual molestation, and of lesser rape, and that there is a risk that he would abscond or in some other way avoid legal process or sentence. The Supreme Course also agrees with the conclusion of the court of appeal that there is no legal hinder to execution which would warrant rescinding the detention decision.

Principle of proportionality

6. A further condition for detention is that the grounds for the decision weigh up against the intrusion or other harm that the measure would mean for the suspect or for any other corresponding matter (chap 24 § 1 paragraph 3 trial code).

7. The pertinent legal provision cites the so-called principle of proportionality. This means that a detention must be in reasonable proportion to what can be gained by the measure. As little coercion as possible is to be used to achieve the desired goal, and a coercive measure may only be used if the objective of the measure cannot be achieved by less intrusive measures. (See prop. 1988/89:124 p. 26 and 65 f.) Ultimately it is a question of weighing the public interest in investigating suspicions of crime in a secure fashion against the interests of the individual in not being deprived of liberty. It should especially be noted that the matter of guilt has not been determined.

8. In the matter of continued detention, there is relevance in how long the deprivation of liberty has been ongoing and for how much longer it can be expected to continue. The longer the deprivation of liberty, the stronger the reasons needed to continue the detention. Particularly with serious criminality this can be important if there have arisen difficulties in the investigation. The investigative authorities should also, with reasonable efficiency, try to make the detention’s duration as short as possible. If anything should be unclear in this regard, it is not the individual who should be burdened by it. (See NJA 2011 p. 518 para. 14–21, compare chap 24 § 18 third paragraph trial code.)

9. An assessment of proportionality shall also be conducted with a continuation of detention of a suspect who is not present in court. The weighing of the opposing interests must however take into consideration that the detention has not been capable of being executed. The opposing interests can therefore take on another mutual weight in such cases. Even outdoor deprivation can in practice lead to restrictions in the liberty of the individual, but typically an executed detention decision must be seen as significantly more intrusive (compare chap 24 § 7 third and fourth paragraphs trial code).

10. The suspect need not contribute to the investigation. The factual consequence of detentions that are not executed can be that the preliminary investigation in certain cases cannot be advanced in the same way. In the light of the requirement that the preliminary investigation be conducted effectively, the investigative authorities must consider what opportunities are available to move the case forward.

11. Particularly with extended detentions which have not been executed, there is reason to consider whether the measure is effective (compare Per Olof Ekelöf et al., Rättegång III, 7th edition 2006 p. 48).

12. There is, in this context, reason to also refer to the provisions in chap 23 § 4 of the trial code. This means, inter alia, that no one should unnecessarily be inflicted by costs or inconveniences for the sake of the preliminary investigation, and that the preliminary investigation shall be conducted as quickly as circumstances allow. It can thereby be appropriate to assess, for example, whether interrogations with the suspect can be conducted in forms other than what is customary, and if one in that way can avoid a coercive measure. The matter should be assessed against the background of, inter alia, how far the preliminary investigation could be conducted and what procedures remain, the relevance of the interrogations, if interrogations could have been conducted, as well as under what conditions interrogations can be conducted (compare NJA 2007 p. 337). For an application of the provisions in chap 23 § 4, the decisive matter must be that the interrogations are conducted in judicially secure forms and as much as possible result in materials supporting good judgement.

Judgment in this case

13. The type of criminality suspected in this case is such that there is a strong public interest in seeing it investigated. The suspicion regards events that were to have taken place in Sweden, and the British courts have found that JA can be surrendered to Sweden in accordance with the European Arrest Warrant.

14. It must be pointed out at the same time that the detention – which has not been executed – has existed for a very long time. In June of this year it will have been three years since the British courts concluded their review of the arrest warrant. For most of this time, JA has been resident at the Ecuador embassy in London. According to JA, this is to be seen as a deprivation of liberty to be taken into account in assessing proportionality. He’s claimed that he, after being surrendered to Sweden, can be in turn surrendered to the US, with serious negative consequences.

15. When assessing proportionality, it must be taken into account that JA, as a result of the detention decision and the European Arrest Warrant, was deprived of liberty 7-16 December 2010, and that he has had other restrictions there. JA’s residence at the Ecuador embassy cannot however be seen as relevant in judging proportionality. If a person has been surrendered in accordance with a European Arrest Warrant, then he or she cannot be surrendered to a third country without the approval of the pertinent authority in the Member State who surrendered the person (see Article 28.4 in the council’s framework decision 2002/584/RIF from 13 June 2002 regarding a European Arrest Warrant and surrender between member states). A surrender from Sweden to the US depends therefore – in addition to judgment according to Swedish law – on the approval of Great Britain. It can also be added that no such request has been made by the US to Sweden.

16. Neither can JA’s deprivation of liberty been seen as in practice being limited in a way that violates the European Convention.

17. The question is then whether the investigative authorities should have taken alternative measures to move the investigation forward and interrogated JA. According to the prosecutor-general, the chief investigator has considered whether interrogations with JA could take place without him being in Sweden, for example via video link, but found that alternative inappropriate due to the type of investigation. The chief investigator has not previously seen any acceptable alternative investigative methods for the time JA has been at the embassy.

18. The very long time the detention has been in effect must be weighed into the assessment and means an increased demand on the investigative authorities to review what alternative investigative opportunities are available to move the preliminary investigation forward. Otherwise a detention – even taking into account that it has not been executed – would be seen as in violation of the principle of proportionality.

19. However, after the decision of the Court of Appeal, the chief investigator took measures to arrange for an interrogation with JA in London. The public interest to continue the investigation weighs heavily. With consideration for this and for the risk that JA avoids legal process if the detention is rescinded, a continued detention in the current circumstances can be seen to be in accordance with the principle of proportionality. Therefore there are currently no reasons to rescind the decision. What JA has otherwise submitted does not lead to a different assessment.

20. So JA’s appeal is rejected.

__________

____________________ ____________________ ____________________

____________________ ____________________

The following participated in the decision: justices Ann-Christine Lindeblad,
Gudmund Toijer (referend), Ingemar Persson, Svante O Johansson (dissenting) and Lars Edlund

Presenting justice secretary: Charlotte Edvardsson

SUPPLEMENT TO PROTOCOL
Case Ö 5880-14
2015-04-28

Justice Svante O Johansson dissents and cancels the decision of the court of appeal, and holds that the decision from and including point 19 should read as follows.

19. The chief investigator has taken steps to arrange an interrogation with JA in London. The interest in continuing the investigation is considerable, despite the long detention. But for a long time now, it’s been uncertain when a surrender to Sweden could take place. The measures being taken now should have been taken earlier, in order to see how far this would have taken matters (compare NJA 2007 p. 337). Against this background, the grounds for continued detention cannot be seen as weighing so heavy that they outweigh the intrusion and harm that in practice the measures mean for JA. A decision for detention in the current circumstances is therefore in violation of the principle of proportionality.

20. So the appeal should therefore be approved.

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