Jennifer Robinson, Julian Assange’s legal advisor, wrote a brief to Canberra Members of Parliament in early March 2011. The idea was to give “some insights into the Julian Assange case”.The brief is overflowing with errors. Fiftyseven of them. 57 varieties of truth. Before I go into detail, a short introduction.
In July this year I was contacted by journalists behind Four Corners, Australian ABC’s investigative program. They wanted some information about the Assange case. I noted they were not particularly interested in facts showing that there was something seriously wrong with Julian Assange’s defence.
But they were very nice and warm people and I must say I took a liking to them. So when they asked if I would help along with some pictures I immediately said yes .
When the program, Sex Lies and Julian Assange, aired on July 23 I saw Jennifer Robinson look straight into the camera without batting an eye and in a sweet voice say:
“You only need to look at the way that Red Notices are used around the world. Red Notices are normally the preserve of terrorists and dictators. The president of Syria does not have a Red Notice alert. Gaddafi in Libya, at the same time Julian’s arrest warrant was issued, was not subject to a Red Notice but an Orange Notice. It was an incredibly… it was incredibly unusual that a red notice would be sought for an allegation of this kind.
She completely knocked me out. Not for being good looking which she is, but for what she said. She revealed a monumental ignorance of Interpol Notices implying that even the Interpol are in on some conspiracy against Julian Assange. I could not believe my ears. And she is supposed to be a Human Rights lawyer.
I then remembered Jennifer wrote a brief to Canberra MPs in March 2011, about a week after the verdict in the first extradition hearing. Reading through the brief again there were so many errors I had to count them all. I noticed fifty seven errors, 57. Some repeats.
If you are interested int the 4 Corner’s documentary Sex, lies and Julian Assange it is here. If you want to know what is really true, here is a fact sheet about some of the errors.
Jennifer’s brief is roughly eight pages long. To write about all of the 57 errors would make this post too long. So I am just commenting on the more serious errors. For clarity I shortened Jennifer’s text in each paragraph and entered my comments below. I know there’s a lot left out. Maybe I have to write a second post to deal with the rest.
There is one thing about Jennifer’s brief that is really interesting. In it for the first time the English legal team admits they’ve had conditions for Julian Assange being interviewed. The legal team wanted the complete case file in advance. The team must have been aware that on 15 September Julian Assange’s Swedish lawyer, Björn Hurtig, was denied the case files since it was regarded it was detrimental to the ongoing investigation.
1. I am writing to you to provide a briefing for the meeting of members of Federal Parliament on Wednesday 2 March 2011 regarding the case against Julian Assange. This briefing note sets out the time line of events and the human rights concerns that we have raised in relation to Julian’s case in Sweden.
2. He is currently electronically tagged and held under virtual house arrest, having spent nine days in solitary confinement in a London prison for a crime that he has not been charged with and in relation to allegations that he emphatically denies.
Julian was at the time the brief was written free on bail, with a curfew, electronic tag and having to report to a police station daily. House arrest? Of course not.
Why did Julian spend nine days in a jail? Because when asked for his address during the bail hearings he gave an astonished Judge Riddle a postal box address in Australia. Judge Riddle didn’t appreciate the prank and Julian had go to jail.
Julian is charged with serious sex crimes and has been so since 4:11 pm on 20 August 2010. If he denies the allegations, the only place that is of interest to do so is in Sweden. In a police interview and maybe in a court. If you don’t know yet that Julian is considered charged read this for a full explanation.
3. It is mutually concerning that an Australian citizen like Julian has been treated in ways which would not accord with the standards of Australian law or indeed international law. As I set out in this note, if he is extradited to Sweden, he will be held incommunicado, in solitary confinement, and without bail for several months and then tried in secret on allegations which are weak and which would not constitute a crime in Australia or in the UK.
If Julian’s legal team seriously believed Julian’s treatment was not in accord with international law how come they did not argue that in the extradition hearings?
For the February hearing the Swedish prosecutor Marianne Ny supplied the Magistrates’ Court with a written statement. In it she describes what would happen to Julian if extradited. She clearly stated it is incorrect to presume that Julian Assange would be held in pre-trial detention. He would have no restrictions unless he interferes with the investigation, destroys evidence or influences witnesses. Far from incommunicado.
Julian would of course not be held for months and he would not be tried in secret. Secret trials don’t exist in Sweden. Part of the evidence in a sex case may be heard behind closed doors to protect privacy. The trial and the verdict is always public.
Why is Jennifer mentioning that Julian would be held incommunicado? She must be aware that in the ruling in Stockholm’s Tingsrätt on 18 November 2010 the prosecutor was not allowed to impose restrictions on Julian Assange.
The allegations against Julian constitute crimes in England according to Judge Riddle’s verdict on 24 February 2011. The ruling was just a week before Jennifer wrote her brief.
In a more recent statement by the Prosecutors Office, Julian will be put in jail because he is regarded a flight risk. There will be no restrictions just as the court ruled.
5. Julian had traveled to Sweden in August last year  for the purposes of giving public lectures about his work on Afghanistan and in order to seek protection for WikiLeaks from the strong free speech and publication protections under Swedish law in advance of the Iraq War Logs, the publication of Iraq war military reports, and “Cablegate”, the publication of US diplomatic cables.
It is correct that Julian came to Sweden to seek protection for WikiLeaks. In an effort to do so he applied for residence and work permits on 18 August. Evidently he liked Sweden at the time. The choice of Sweden would give WikiLeaks a better shot at fulfilling the then 39-year old Australian’s self-proclaimed mission to make the world more transparent.
A short time after Julian was accused of sex crimes Julian’s view of Sweden changed dramatically. Sweden was regarded as a banana republic with a corrupt legal system. “The Saudi Arabia of feminism”. A country that is most willing to extradite Julian to the US.
6. Julian first learned of the allegations when he read it in the papers.
According to the police interviews in the Detention Memorandum (“Häktningspromemoria), leaked by Julian’s legal team, Julian knew very well that he would be reported to the police prior to the women going to the police. It seems he didn’t pay attention.
7. Julian volunteered himself for interview on 30 August 2010 in relation to this ongoing investigation. Julian sought an undertaking from the police that his testimony would not be provided to the press. This undertaking was violated: his police interview turned up in the tabloid Expressen the very next day.
Nothing was ever leaked to Expressen or any other media. Parts of Julian’s interview was released to the media according to the Swedish version of the Freedom of Information Act, Offentlighets- och Sekretesslagen (2009:400). The law simply states that all documents in government and public institutions are public unless they contain information that, if revealed, would cause harm. It includes police documents. Anybody can apply to see a specific document. The government must release the document unless it decides that the document or parts of it should be classified.
No police officer in Sweden can prevent Swedish citizens, or anybody else for that matter, having access to government documents according to the Freedom of Information Act. The officer pointed out by Jennifer is Mats Gehlin. He did not leak anything as he promised Julian. Julian’s interview was lawfully released to the media. A release of an official police document contains a few pages specifying the law involved as can be seen here.
Expressen applied for the interview on 31 August, received the redacted version the day after and published it on 2 September.
8. The Prosecutor, Ms Ny, granted the appeal on 1 September 2010 and the rape investigation was re-instituted. Julian was not informed of this appeal or provided the opportunity to make any submissions.
Jennifer’s wording implies that there is something not right in the appeals process. Brita Sundberg-Weitman’s expert witness statement says something very different:
Concerns have been raised by Mr Assange’s lawyers in London regarding the fact that this appeal process was undertaken without notifying Mr Assange or his Swedish lawyer or giving him the opportunity to participate or make submissions. However, I confirm that this is permitted as a matter of Swedish law and that no complaint can be raised that this process is an abuse of process, no matter how oppressive to the defendant.
It is noteworthy that Jennifer wrote Brita Sundberg-Weitman’s statement on 27 January 2011, about a month prior to the Jennifer’s brief. Jennifer must have known that there is nothing in the appeals process that is unlawful or abuse of process. For some reason she decides to leave it out.
9. It is noteworthy that Mr Hurtig had applied for disclosure of the police file in September and November 2010. Both requests for disclosure were denied by the Prosecutor, Ms Ny, despite the fact that some of this material had already been provided to the press. We were only alerted to this on 21 January 2010, some four months later, when this same material was disclosed by the Prosecutor to Mr Hurtig and passed to us. It is noteworthy that Mr Hurtig had applied for disclosure of the police file in September and November 2010. Both requests for disclosure were denied by the Prosecutor, Ms Ny, despite the fact that some of this material had already been provided to the press.
For some reason Jennifer does not mention that on 15 December she received a statement from Mr Hurtig saying “There is no requirement under Swedish law to provide the full case file, but it can be requested, and I have requested it in writing an orally.”
In the English criminal procedure the police/prosecutors are not required to disclose the case files until a suspect has entered a not guilty plea and a decision to indict is made. Just as in Sweden.
If the English legal team wanted the material that was provided to the press they could have applied for it. They choose not to. The reason is that the material released under the Freedom of Information Act is redacted and of no real use to a defence lawyer.
It is not correct that the prosecutor on 21 January 2011 disclosed material to Mr Hurtig who then passed it to the legal team. The reason I know is that I was asked by Jennifer for the material on 21 January and I sent it to her on 5:48 am on 22 January 2011.
10. Julian remained in Sweden for approximately 5 weeks to answer the allegations against him.
What is most interesting with this particular sentence is that Judge Riddle in his ruling on 24 February 2011 regarded Mr Hurtig an unreliable witness for stating that Julian remained in Sweden for 5 weeks to answer the allegations against him and the prosecutor did not make any effort to interview him. From Judge Riddle’s ruling:
Mr Hurtig said in his statement that it was astonishing that Ms Ny made no effort to interview his client. In fact this is untrue. . . . . . The statement was a deliberate attempt to mislead the court. It did in fact mislead Ms Brita Sundberg-Weitman and Mr Alhem . Had they been given the true facts then that would have changed their opinion on a key fact in a material way.
It is important to note that Julian left Sweden on 27 September without making one phone call to his lawyer to check if it was okay to leave. It is a bit far fetched to say that Julian left with permission and in good faith.
11. An interview was finally proposed on 22 September (more than three weeks after Ms Ny had begun the investigation) for 28 September. Mr Hurtig was unable to contact Julian to communicate this request. It is important to note here that Julian was, at that time, difficult to contact. . . . He did not flee the country to avoid interrogation, as has been suggested by the Prosecution.
On 21 September it was agreed that Julian should come in for an interview on 23 September. Since Julian was uncontactable a new date was agreed, 28 September. Julian was uncontactable between 21 and 27 September so this interview had to be canceled too.
Judge Riddle puts it like this in his ruling 24 February 2011:
“I have not heard from Mr Assange and do not know whether he had been told, by any source, that he was wanted for interrogation before he left Sweden. I do not know whether he was uncontactable from 21st – 29th September and if that was the case I do not know why. It would have been a reasonable assumption from the facts (albeit not necessarily an accurate one) that Mr Assange was deliberately avoiding interrogation in the period before he left Sweden. Some witnesses suggest that there were other reasons why he was out of contact. I have heard no evidence that he was readily contactable.
It is not necessary for me to determine for current purposes whether Mr Assange deliberately fled the country to avoid further proceedings. That has not been specifically alleged. What is clear however is that he has not made himself available for interview in Sweden.
12. Julian telephoned Mr Hurtig from Berlin on 29 September to inform him that his luggage had gone missing on his Stockholm-Berlin flight and that it was now presumed to have been stolen since the airline had not been able to locate and return it. He called to instruct Mr Hurtig to take legal action. It was then he was informed of Ms Ny’s intention to interrogate him. Julian offered to return to Sweden on 9-10 October for interrogation. This date was rejected as being ‘too far away’.
Julian left for Berlin in the afternoon of the 27th of September. In the morning of 28 September he called Björn Hurtig. The call was overheard by the Italian journalist Stefania Maurizi. The reason, according to Julian, that he didn’t call his lawyer between 21-27 September was that he feared for his life. As soon as Julian arrived in Berlin he stopped fearing for his life. It looks like Julian’s luggage was more important to him than his own life. Hard to believe.
According to Björn Hurtig Julian did not instruct him to take legal action. It makes sense. Lost luggage is normally reported at the airport of arrival by the passenger himself. It is not a matter for a defence lawyer.
On 30 September Björn Hurtig informed the prosecutor that Julian was willing to come in for an interview on 10 or 14 October. These dates were not rejected by the prosecutors.
The prosecutors knew that Julian was scheduled for a seminar on 6 October and a demonstration on 9 October. On 5 October Björn Hurtig was asked to bring Julian in for an interview on 6 October. Since Julian did not show for the seminar or the demonstration the planned interviews had to be cancelled. Julian did not show up for an interview on the 10th or the 14th. In fact he chose to stay away from Sweden.
13. During this period [October and November], we offered that Julian be interviewed via telephone or video-link from London on the condition that the Prosecutor provide him further information about the allegations and potential charges.
The legal team knows that Mr Mr Hurtig had applied for disclosure of the police file in September and had been denied. Why is the legal team asking for full disclosure of the police file, including the exculpatory evidence such as the text messages, as a condition for offering Julian for an interview? They must know for certain that the prosecutor will deny their application. Why is it that it is only in this brief the legal teams admits having tough conditions for an interview? Why did they not tell the media in October and November 2010 that they had conditions for interviews? Were they just playing a game to make it look like the prosecutor denies all their so called offers of cooperations?
14. This is significant: throughout this period Julian had continually indicated his willingness to cooperate with the authorities by offering alternative means of interview to the Swedish and by reporting his presence in the UK to the local police. The widely reported suggestion he was in hiding from justice is simply false.
During this period Julian was asked by his Swedish lawyer to return to Sweden for an interview. He refused. It is obvious Julian was staying away from Sweden and justice.
15. After our voluntary offers of cooperation were rejected, the arrest warrant in Sweden was granted on 18 November 2010. Ms Ny, the Prosecutor, sought an arrest order to have Julian held incommunicado pending potential trial.
From the previous paragraph it is evident that the legal team wasn’t serious in their “voluntary offers of cooperation“. They must have been firmly convinced that their offers would be denied. For some reason they never told the public the real reason for the prosecutors refusal.
On 18 November 2010 a warrant for Julian’s arrest was granted by Stockholms Tingsrätt. The ruling reads: “Åklagaren får inte tillstånd att meddela beslut om restriktioner”. (The prosecutor is not allowed to impose restrictions.)
16. Just before the hearing on 18 November Mr Hurtig was, for the first time, provided a description of the allegations against Julian and provided copies of parts of the police file. At that time he was also shown more than 100 text messages between the two complainants and their friends, which contained important evidence about the allegations and the women’s motives. For example, the second complainant had been texting her friends in between sexual encounters with Julian over the course of the evening in question and states that she was “half-asleep” at the relevant time at which the arrest warrant asserts she was “asleep”: a very important factual error in the warrant which undermines the entire case. Further, the women speak of getting “revenge”, making money from the allegations and ruining Julian’s reputation by going to the press. However, the prosecutor refused to allow Mr Hurtig to take copies or to even take notes from this important evidence.
This paragraph contains a number of errors. The full allegations against Julian were presented to him on 1st September at the same time as Sweden and the rest of the world. Leif Silbersky, Julian’s first lawyer, informed him, in a language he understood, of all the charges. When Julian heard them he reacted with anger. “He was angry and disappointed with how Swedish justice system works”, according to Leif Silbersky. The same day WikiLeaks in a tweet informed their supporters that the investigation was re-opened.
Mr Hurtig was informed of all the charges against Julian when he took over as his court appointed public defender on 8 September. Anybody that was interested could from 1 September 2010 on the prosecuters web-site view the charges. The press release and the actual decision is easy to find.
On 15 November Mr Hurtig was given an almost complete case-file for the detention hearing 18 November. Mr Hurtig was also given the opportunity to examine exculpatory evidence, some 100 text messages between the two complainants and their friends. Judging from Mr Hurtig’s reaction the text messages are not that important.
Jennifer mentions a text that according to her contains “a very important factual error in the warrant which undermines the entire case.” A quick examination reveals that Jennifer refers to a text that was sent long before the alleged rape took place. Jennifer is not aware that the factual circumstances she talks about totally undermines her conclusion.
Jennifer also mentions texts containing a plan to seek revenge. In an interview with one of the witnesses, Marie Thorn, the texts are very well explained. It was a way of giving verbal support to Ms S. My interpretation is that Marie’s statement is honest and that the texts are innocent and in no way undermines the case.
17. Mr Hurtig has made numerous requests for further disclosure under Swedish Criminal Procedure Code (Chapter 23.18), but these have been denied. In correspondence with the Australian Embassy in Stockholm, Ms Ny justifies her position in refusing to disclose this important material on the grounds that Julian has not yet been charged.
As mentioned previously, Mr Hurtig explained to the legal team on 14 December “There is no requirement under Swedish law to provide the full case file”. The prosecutor’s reason given to the Australian Embassy for not releasing the case file was “Jag gör bedömningen att det skulle vara till men för den pågående utredningen i ärendet.” (I am of the opinion that it would be detrimental to the ongoing investigation into the matter.)
Julian is to be considered charged but he is not indicted yet. When he is indicted he will get the full case file with all the exculpatory evidence.
18. Despite Mr Hurtig’s requests, Ms Ny had consistently refused to inform Julian regarding the specific charges to be brought against him before he was interviewed: interview by ambush is the preferred Swedish method. We had requested a specific description of the charges and the evidence in English as a condition precedent to Julian returning to Sweden to be interviewed. This, again, was refused. The first document Julian received from the prosecutor in English was the translation of the EAW provided by the English police at Kentish Town Police station in London when Julian voluntarily met with police to answer the warrant on 7 December 2010. This was the first time he had been informed in writing of the specific allegations and potential charges against him in English. I was with Julian at the police station and witnessed his shock and surprise at reading the allegations as described in the warrant.
Julian was informed of all the allegations against him in a language he understood as early as 1 September as mentioned earlier. The conditions the legal team set up for Julian’s return to Sweden were impossible for the prosecutor to meet. Not only should he receive the complete case file with all the exculpatory evidence, it should be in English as well. Something he will be entitled to when he is indicted.
On 15 November Mr Hurtig received most of the case-file. On 23 November he faxed the case-file to the English legal team. If Julian was seriously interested in the charges against him, if he had forgotten them since 1 September, he could easily have picked up the phone and talked to his lawyer Björn Hurtig. He did not. Instead he chose to to act surprised in Kentish Town Police Station, hoping that Jennifer could convince Canberra MPs it was for real.
19. It is noteworthy that the both the EAW and the Interpol red notice were issued for Julian by Sweden just before WikiLeaks began to publish Cablegate with their media partners and were executed just days after publication began. Had Julian returned to Sweden in October or November, we know (confirmed by the findings of the judge in London on 24 February 2011) that he would have been held incommunicado in prison pending trial and we may not have seen the release of Cablegate. Furthermore, his Swedish counsel, Mr Hurtig noted at the time that it was highly irregular for an international arrest warrant to be sought in relation to allegations of this kind.
The timing of the Interpol Red Notice and the EAW had nothing to do with the publishing of Cablegate. If Julian had been cooperative and listened to Mr Hurtig’s advice this matter would most likely be over and done with in early October as deputy prosecutor Erika Lenjefors told Mr Hurtig. As early as 12 October Julian was warned that if he did not show up for an interview an arrest warrant would be sought and an Interpol Red Notice would be issued. Julian ignored the warning.
It is not likely that Julian would be held incommunicado if he had returned to Sweden of free will. “Agreed facts and Issues” states that in October “the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was ‘not a wanted man’ and would be able to attend an interview ‘discreetly’.”
Judge Riddle did not find that Julian would be held incommunicado if he returned to Sweden.
In the ruling at the detention hearing 18 November the prosecutor was not allowed to impose restrictions.
Issuing an Interpol Red Notice to arrest a suspected sex offender is common. Red Notices are for to seek the location and arrest of a person wanted by a judicial jurisdiction with a view to his/her extradition. It is not just for dictators and terrorist as Jennifer claims in the Four Corners documentary.
20. The Swedish prosecutor has failed to disclose any materials to Julian in English (the language he understands), which is her obligation under the European Convention of Human Rights.
There is no obligation for the prosecutor to disclose materials to Julian in any language prior to indictment. If Julian is indicted, there is an obligation under the European Convention of Human Rights to disclose materials to Julian in a language he understands. Julian is not indicted yet.
23. Ms Ny’s own deputy, Prosecutor Erika Lejnefors, had told Mr Hurtig in November that the case would likely be dropped because it was so weak.
It is correct that prosecutor Erika Lejnefors told Mr Hurtig that if Julian just would come in for an interview the case might be dropped. Why Julian refused to come in for an interview is extremely difficult to understand.
24. Further, Julian has suffered immense adverse prejudicial media coverage in Sweden, fueled both by the disclosure of police material to the press by the Prosecution and by the highly prejudicial media statements of the lawyer of the two complainants and funded by the Swedish government, Mr Borgstrom. Mr Borgstrom has called Julian a ‘coward’ for not returning to Sweden and has alleged that his refusal to return is indicative of his guilt.
All the material that is supplied to the press is lawfully released according to the Freedom of Information Act. There isn’t “immense adverse prejudicial media coverage in Sweden”. It is true that the media coverage is not as favorable as Jennifer’s brief is.
28. In summary, our concerns regarding the case in Sweden to date include:
- the unlawful and prejudicial disclosures by police and the prosecution regarding ongoing criminal investigations;
There are no unlawful disclosures by the police and the prosecutors. All disclosures are in line with the Freedom of Information Act.
- the failure to disclose details of the allegations and the evidence in English;
Julian is entitled to full disclosure of the allegations and the evidence as soon as he is indicted.
- the breaches of police procedures in the investigation of the allegations;
As far as I know there are no breaches in police procedures. I am critical to the way this investigation has been conducted. Unfortunately this is not the only investigation that is poorly conducted.
37. Second, demands must be made of the Swedish authorities to ensure that, if Julian returns to Sweden, that his human rights will be protected. These include:
- A guarantee be provided that he will not be extradited to the United States, but instead will be allowed to travel back to Australia.
- In considering the risk of extradition to the US from Sweden, it must be recalled that Sweden has a history of complying with US requests to hand over persons.
It is not possible for the Swedish government to issue a guarantee that Julian will not be extradited to the US. Such a guarantee would short circuit the court system and would be unconstitutional.
Sweden does not have a history of extraditing people to the US for military or political crimes. In fact in the last 50 years not one person has been extradited. As late as in 1992 a CIA defector, Edward Lee Howard, was not extradited to the US from Sweden.
57 varieties of “truth”
Henry J. Heinz was an amazing character. At age nine he started selling his first product, bottled horseradish made from his mother’s own recipe. In 1869 he started the Company, packaging and selling foodstuffs on a small scale. Although ketchup is the most famous Heinz product today it didn’t come along until seven years later in 1876.
But what about the 57 varieties? While riding a train in New York City in 1896, Henry Heinz saw a sign advertising 21 styles of shoes, which he thought was clever. Although Heinz was manufacturing more than 60 products at the time, Henry thought 57 was a lucky number. So, he began using the slogan “57 Varieties” in all his advertising to make people realize that he had lots of products. Today the company has more than 5,700 products around the globe, but still uses the magic number of “57.”
Jennifer Robinson is Julian Assange’s legal advisor, a function she’s had since October 2010. Originally from Australia, educated in Oxford, now the legal Legal Director for the Bertha Foundation in London. But what does an intelligent, witty, nice-to-have-a-drink-with Human Rights lawyer have to do with ketchup? Nothing really. It’s the 57 varieties that is the connection. In the brief to the Canberra meeting of MPs regarding Julian Assange in March 2011 I noted that there were 57 varieties of truths.
In 1896 Henry J. Heinz noted that 57 varieties is a large number of products. Today I note that 57 varieties of “truth” in one brief is a very large number. I am sure that Henry J. worked very hard to create his 57 varieties just as Jennifer did to create hers. But I just cannot understand why she did it. Doesn’t she know that the truth will come out sooner or later?