One central issue for Julian Assange’s English legal team has been to show that Julian Assange is not “accused of crimes”. That he is not charged. The English team’s argument has been, simply put, he is not “accused” since the word accused does not appear in the EAW. Since the word accused does not appear in the EAW the English team assumed, incorrectly, that Julian Assange is neither accused or charged. Then they go on arguing, based on poor understanding of the legal system in Sweden, that Julian Assange is just a suspect, thus is only wanted for questioning. A poorly constructed defence.
In order for the defence to get support for the idea that Julian Assange is “not accused” and “not charged” they asked Brita Sundberg-Weitman, a Swedish lawyer and a former judge, for an expert witness statement:
Instead, she [Ms Ny] obtained an EAW that saw Assange imprisoned in London without a charge for nine days in December.
In this case, Ms Ny has stated repeatedly that she has obtained the warrant to question Mr Assange and that no decision has yet been taken to charge him.
From Brita Sundberg-Weitman’s statement one can tell she does not know what “charge” really means. She is of the opinion that “charge” means “to indict”, “åtala”. That this is her opinion is evident from an article on Newsmill from 21 November 2011 when she criticizes the High Court ruling:
In England and Wales, decision on indictment is taken at an early stage, and if Assange had committed what he is accused of in England or Wales criminal proceedings against him would have already begun.
As I showed in my previous post, the decision to indict, formally charge (“åtala”), is taken at a late stage in England just as in Sweden. The expert witness was unaware.
What is prosecutor Marianne Ny’s position?
In many interviews prosecutor Marianne Ny has stated that Julian Assange is a suspect and he is detained on suspicion of sex-crimes and the stage where the criminal process is at now is “preliminary investigation”. In her statement from 4 February 2011 she puts it like this:
According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.
It is evident that Marianne Ny means that “a formal decision to indict” is a late decision in the Swedish criminal procedure. An English lawyer would immediately understand that before the indictment there must be a process called charge/accusation, at least in England. I am very surprised that Assange’s English legal team did not fully investigate what the stage preceding indictment is in Sweden and what that stage corresponds to in the English criminal procedure. This was really a monumental mistake. From this mistake others follow.
The Swedish criminal procedure
Professor Christoffer Wong, a lecturer in criminal law at Lund University in southern Sweden and expert on the European Arrest Warrant, in a recent document, Overview of Swedish Criminal Procedure, explains the criminal procedure in Sweden in detail. For those of you interested in knowing more read Professor Wong’s document.
Professor Wong points out in a note: As there is no official English translation of the Swedish statutes and different authorities or commentators may use different translations, the original Swedish terms (within brackets and in italics) are given, when necessary, directly after the translated term. The translation and original term may not correspond exactly to each other in grammatical form.
“It is a feature of Swedish criminal procedure that a person is formally charged – through an indictment – at a relatively late stage of the process. As pointed out above, this takes place when the preliminary investigation is to terminate. This differs quite markedly from legal systems in which a person is charged on a lower degree of suspicion and is then detained or given bail while the police or prosecution authorities continue with the investigation. It is therefore not at all unusual for the Swedish Public Prosecutor to issue an European arrest warrant or a request for extradition of a suspect, before making a decision to indict the person. This does not detract from the fact that the request nonetheless is made for the purpose of prosecution.”
“Clearly, being ‘charged with a criminal offence’ cannot mean the act of prosecution according to Swedish domestic law. The concept has an autonomous meaning, and the Swedish Supreme Court has had an opportunity to examine at which stage of the criminal proceeding in Sweden, a person would be considered as being ‘charged’ according to the autonomous meaning of the ECHR. There is no doubt that – at the latest – a person will be considered ‘charged’ when he or she is suspected of crime on reasonable grounds. The question is whether a person may be considered as being ‘charged’ at an earlier stage. In a case concerning the appointment of a public defence counsel, the Supreme Court stated in general that a person should be treated as ‘charged with a criminal offence’ when ‘the authorities have taken some measure with the consequence that a person’s situation is substantially affected by the fact that there is a criminal suspicion against him’.”
“A preliminary investigation can be terminated in a number of ways. If the investigation shows that there is sufficient evidence to prosecute, the Public Prosecutor may either go ahead with the prosecution, by issuing an indictment, or alternatively drop the charges”
Professor Wong’s document makes it very clear, Julian Assange is to be regarded as “charged with criminal offences”. What is without any doubt is that from 18 November when Julian Assange was “häktad på sannolika skäl” (detained on probable cause) he was to be regarded as charged. It seems like Julian Assange’s English legal team was unaware of the Swedish legal system and that they did not listen to Björn Hurtig, Julian Assange’s second Swedish lawyer.
Julian Assange’s English legal team have made a series of grave mistakes and bad judgments. Reading their skeleton argument for the hearing in February 2011 makes anybody with some insight into how the Swedish legal system works understand that the team were ill-informed. The legal advice offered to Julian Assange was not that good – as Judge Riddle confirmed in his decision on 24 February 2011. The full responsibility for this must surely lie with Mark Stephens and his team.
I think it is correct to criticize Åklagarmyndigheten (the Swedish Prosecution Authority) and prosecutor Marianne Ny for not being direct and informative. They should have explained more clearly what the stage of “preliminary investigation” actually means in Sweden – all the time before the indictment. This is a concept that is understood by Swedes familiar with legal proceedings. But to a foreigner it is gobbledygook.
I also think it is fair to criticize Prosecutor General Anders Perklev for not getting involved. He must have seen the total confusion in international media. Thousands of journalists scratching their heads in disbelief. Why didn’t he just tell Marianne Ny that a suspect in a “preliminary investigation” means that the person is charged with a crime. Or could it be he didn’t know? Questions have to be asked.
Looking back it is easy to see that the communication between Mark Stephens and Marianne Ny wasn’t good. Just hours after Sweden’s Supreme Court rejected Julian Assange’s bid to prevent an arrest order from being issued against him on allegations of sex crimes Mark Stephens blasted:
“Whatever ‘sex by surprise’ is, it’s only a offense in Sweden — not in the U.K. or the U.S. or even Ibiza,”
“I feel as if I’m in a surreal Swedish movie being threatened by bizarre trolls. The prosecutor has not asked to see Julian, never asked to interview him, and he hasn’t been charged with anything. He’s been told he’s wanted for questioning, but he doesn’t know the nature of the allegations against him.”
Now when details of the case emerge it easy to see that Mark Stephens misrepresented facts. On 1st September, when the investigation was re-opened Julian Assange was informed of all allegations against him. His reaction was: “He was angry and disappointed with how Swedish justice system works”, according to Leif Silbersky, Julian Assange’s first Swedish lawyer.
A few days later Mark Stephens pointed out the similarity between Prosecutor Marianne Ny and Lavrentiy Beria, the notorious head of Stalin’s secret police:
“Prosecutrix Ny’s actions put me in mind of Lavrentiy Pavlovich Beria — they certainly appear to have nothing much to do with truth or justice”
You don’t have to be a linguist to understand that Mark Stephens comments made dialog with the prosecutor an impossibility. So my conclusion is that most of the fingers, actually many fingers on many hands, must be pointed at Mark Stephens’ legal team and at Julian Assange himself. Their ignorance and fondness for misrepresenting facts is monumental. How they ever hoped this defence could be successful is beyond me.
I cannot stop without complementing and quoting Professor Wong’s insight:
“The distinction between the overall process of prosecution (lagföring) and the actual act of prosecuting a person through indictment may be a source of confusion for foreign lawyers who only have access to translated texts of the Swedish legislation.”
This case also shows that there is a problem with the Swedish language. It is indirect and implicit. We speak in “code”. “Preliminary investigation” is code for “charged with a crime”. Not that easy for a journalist in Sioux Falls South Dakota to understand. Or anywhere else for that matter. There isn’t a dictionary on the planet that translates “preliminary investigation” into “charged with a crime”.
But I cannot stop thinking what the outcome of this case would have been if Julian Assange’s English legal team had listened to someone who knew the “code”. Someone like Björn Hurtig, Julian Assange’s Swedish court appointed lawyer.