One reason the Assange case looks complicated is that Julian Assange and his legal team lie and misrepresent facts. For instance, they deny the fact that he’s been charged, they deny that he left Sweden to avoid interviews and they try to hide the fact that he had conditions for interviews. In two articles I have shown that Jennifer Robinson and Per E Samuelsson are very liberal with the truth, to say the least.
Another reason the case seems complicated is that the Swedish Prosecution Authority hasn’t explained the Swedish Criminal Procedure in terms easily understood. The Prosecutor General Anders Perklev is satisfied the English Judges have ruled correctly. I don’t think that is enough. It is important that justice is done. But is even more important that it can be seen to be done.
Finally, the Prosecutor Marianne Ny is not the best of communicators. She denied Björn Hurtig’s request for interviews in England with the words “For investigative reasons” it is not an option. Not a very good explanation.
For a long time Julian Assange and his lawyers have demanded that Julian Assange should be interviewed in England using Mutual Legal Assistance, MLA. They claim it is common that MLA is used in cases like his. Since the legal team makes this claim it is most likely not the full truth. “Whoever is careless with the truth in small matters cannot be trusted in important matters.”
In this article I will take a look at Mutual Legal Assistance and try explain what it is for and when it is used. It is not used in cases like Julian Assange’s and I will explain why.
There are differences between the English and Swedish criminal procedures. There are similar concepts but there are no official translations. So there are many “errors in translation”. Many believe that “åtala” (indict) is to be translated into charge. To make it even more confusing some people say charge when they mean formally charge, indict. I’ve made this mistake too. Add to this that some people are doing their best to misrepresent facts and don’t hesitate to lie.
Serious crimes in England are called indictable offences. Murder, manslaughter, rape, cruelty to children, arson etc. These cases are tried in a Crown court and mostly tried in front of a jury. The proceedings are slightly different from common crimes, summary offences. When the police suspects you to have committed an indictable offence you are charged with a crime. If an investigation confirms the suspicions you can, after you have entered a plea of not guilty, be indicted (formally charged). If the suspicions are not confirmed charges will be dropped.
In Sweden we don’t have trials by jury. So we don’t have anything that corresponds directly to indictable offences. If a crime has a longer prison sentence than one year it is regarded a serious crime. The authorities are allowed to use strong force measures against a person that is suspected of a serious crime, detention for example. The criminal proceedings are also slightly different from a common crime.
What does charged mean?
What complicates matters is how the term charged is used. For common crimes (summary offences) being charged normally means you have to go to court to face a judge. For an indictable offence being charged means the start of an investigation that could result in an indictment. It is not until you are indicted that you have to go to court and defend yourself. Being charged with a crime have different meanings depending on if it is an indictable offence or a summary offence. This is very important to recognize.
“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.”
Being suspected of a crime on reasonable grounds (or with probable cause) is very early in the criminal process. It is the formal starting point for the criminal investigation which in Sweden is called “förundersökning” (preliminary investigation).
Julian Assange is charged
Julian Assange is suspected of rape. An indictable offence in England. According to the High Court ruling, paragraph 153:
In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced.
What is the situation in Sweden? Julian Assange was reported on 20 August 2010. At 4:21 pm an interrogation of one of the alleged victims was initiated. An interrogation is part of a criminal investigation. Some time before 4:21 pm Julian Assange was suspected of a crime on at least reasonable grounds since a decision to start a criminal investigation must have been made prior to the interrogation. He was arrested at 5 pm 20 August 2010, charged with crimes with probable cause. Julian Assange was considered charged some time before 4:21 pm 20 August 2010. Just a fact.
Julian Assange, his legal team and his supporters seem to be completely ignorant of the Swedish criminal procedure. They make claims that have no foundation in laws or procedures. They also seem to be in complete denial of the High Court ruling. They still claim “Julian Assange is not charged with a crime”. To me Julian Assange and his legal team act like legal midgets. And legal midgets don’t win in courts.
Four levels of suspicion
In Sweden there are four levels of suspicion. Commonly it is regarded that we only have two, number 2 and 3. (Thanks to Max, see comment, I changed parts of the article. I made a mistake.)
- Kan misstänkas Be suspected
- Skäligen misstänkt Suspected on reasonable grounds
- På sannolika skäl misstänkt Suspected with probable cause
- Tillräckliga skäl för åtal Sufficient grounds for prosecution.
1. Kan misstänkas
This is the lowest level of suspicion. The police is not allowed to use any force measures. Search warrants cannot be issued and a person cannot be held for an extended time at a police station. The police are of course allowed to interview suspects.
2. Skäligen misstänkt
If a person is “skäligen misstänkt” the police is authorized to use force measures. Search warrants can be issued. If a person is detained (remanded) on reasonable grounds (“häktad på skälig misstanke”) he can be held up to fourteen days in prison while the police makes an investigation. In Sweden “skäligen misstänkt” is often called the lower level of suspicion.The police’s job is to continue to investigate to confirm suspicions in order to be able to detain a person charged with probable cause or to release the person. Being released from detention just means that there is not enough evidence to keep a person detained.
3. På sannolika skäl misstänkt
This is often referred to as the higher level of suspicion. The police is authorized to use full force measures. If a person is “häktad på sannolika skäl misstänkt” (detained charged with a crime with probable cause) a prosecutor is allowed to issue an European Arrest Warrant (EAW). Please note that an EAW cannot be issued by a prosecutor on her own. An independent judicial authority, a court, is always involved in the decision. It is not until a court has detained a suspect charged with a crime with probable cause that a prosecutor can issue an EAW.
An EAW is not issued by a prosecutor on her own. It is a team effort. First there is a judicial authority, a court, that detains a suspect charged with a crime with probable cause. It is not until a person is detained that an EAW can be issued. Since the EAW process in Sweden involves a judicial authority Julian Assange’s complaint wasn’t successful.
4. Tillräckliga skäl för åtal
If there are sufficient grounds for an indictment normally a person is indicted if he pleads not guilty.
The general idea
The police’s and the prosecutors’ job put simply is to identify a suspect. Make investigations to find out if suspicions can be increased or a person can be cleared of suspicion. To general idea is to take a suspect from suspicion level 1 to level 4 and then take him to court and hopefully get a conviction. In this process a suspect is very often detained.
Julian Asssange claims he is just suspected
Julian Assange’s legal team have for years in vain tried to argue that Julian Assange is just suspected “Kan misstänkas”, suspicion level 1. That is the reason they argue that Julian is only wanted for questioning. It is really a stupid argument since almost everybody knows, even the most fanatic Assange supporters, that he was arrested on 20 August 2010, charged with a crime with probable cause. On 18 November 2010 he was detained, charged with a crime with probable cause, “på sannolika skäl misstänkt” (level 3). The detention was challenged and it was upheld by Svea Hovrätt. The ruling was appealed to the Supreme Court of Sweden, but the court refused to hear the case. It was not until a judicial authority (actually three courts in Sweden) ruled that Julian Assange should be detained that an EAW was issued.
Two English courts have ruled that Julian Assange is an accused person, considered charged, and therefore it is correct to extradite him to Sweden. The UK Supreme Court have upheld the ruling since they did not try this part.
Even after the Supreme Court ruling Julian Assange, his legal team and supporters still claim that Julian is not charged with a crime. A futile argument. It is not possible to be “häktad” (detained) in Sweden unless there is at least reasonable grounds. Julian is detained on the higher level of suspicion, “häktad på sannolika skäl” (detained charged with probable cause) and an EAW is issued.
What about Mutual Legal Assistance?
The idea behind Mutual Legal Assistance is to make it easier for the police to investigate crimes. Police in foreign countries can assist national police to make investigations, conduct searches, interview suspects, seize assets etc. MLA is an often used tool in tax cases.
MLA is also used in criminal cases. How it is used depends on the seriousness of the crime. If the suspicion is not high enough to allow for an EAW (suspicion level 2) the police can ask for assistance of the police in the country where the suspect is to make further investigations. The idea is to confirm suspicions, to make it possible to charge the suspect with probable cause, level 3, in order to issue an EAW. When an EAW is issued, an extradition process is initiated and there is no need for MLA unless the police wants to conduct searches, seize assets, interview witnesses etc. In Julian Assange’s case there is no need to conduct searches, seize assets, interview witnesses etc. There is no need for using MLA. A legal fact.
The idea of the EAW is to get the suspect into Swedish custody, continue the investigation in Sweden and indict the suspect.
A Case where MLA was used
To get an idea how this works in reality let’s look at well known murder case. On 17 March 2008 a young mother was brutally attacked in her home in Arboga and her two infants were clubbed to death. After a few days Christine Shürrer, a German female, was suspected of the murders. A warrant for her arrest was issued on 20 March 2008. At the time the suspicion was only “skäligen misstänkt”, level 2. Christine was arrested in Germany on 22 March and released the same day since the suspicion was not serious enough to hold her for an extended time. Swedish police used MLA to get help from German police. On 29 March a new warrant for Christine’s arrest was issued, this time with probable cause since the suspicions had been confirmed. An EAW was issued and Christine was extradited to Sweden. After the criminal investigation (förundersökningen) was completed she was indicted and in the trial that followed she was sentenced to life in prison for double murder and attempted murder. She now serves her prison sentence in Germany.
Swedish police used MLA in this case since there was not enough evidence to have a suspect arrested with probable cause. Once there was enough suspicion an arrest warrant on probable cause was issued and the case moved to next level. An EAW was issued and the suspect was extradited.
Where Julian Assange’s case is now
Julian Assange is accused of serious crimes, rape and sexual molestation. Not “sex by surprise” as his legal team have suggested. He has been detained charged with a crime with probable cause, level 3. An EAW has been issued and he has been ordered by three English courts to be extradited to Sweden.
Where the case is now the prosecutor wants to interview Julian and ask him to enter a plea. If Julian enters a plea of not guilty he will most likely be indicted. In her February 4, 2011 statement to the Magistrates’ Court Marianne Ny says: “.. my present view [is] that he should be indicted”. Because the case is in this late stage Julian Assange has to be surrendered to Sweden and in custody.
At this stage there is absolutely no point for the prosecutor in interviewing him in England even if he at this time would consent to an interview without conditions. Julian Assange has had many opportunities to be interviewed. He has consistently refused to be interviewed. He has had many opportunities to clear himself but he has constantly refused.
Julian Assange’s Conditions for interviews
I have shown in an earlier post that Julian’s legal team have had conditions for Julian’s participation in interviews. They wanted the complete case file in advance. Conditions that the legal team must have known were unacceptable to the prosecutor. For some reason the legal team has tried to hide from media that they had conditions. They wanted to depict the prosecutor as unreasonable and as an evil radical feminist. The only document where the legal team admits they had conditions for interviews is in Jennifer Robinson’s brief to Canberra MPs, paragraph 17, 18 and 37.
What does the English courts say about MLA?
After reading the judgment in the first extradition hearing I am not of the same opinion:
Nevertheless, even on the true facts some important conclusions of Brita Sundberg-Weitman and Mr Alhem (for example that Mutual Legal Assistance was a more proportionate response than issuing an EAW) remain.
In cross-examination the witness [Brita Sundberg-Weitman] told me she is not an expert in Mutual Legal Assistance.
Julian Assange lost his appeal in the Magistrates’ Court’s. He appealed to the High Court. If one really wants to know what the English Court’s view is on interviews in England it is in the High Court ruling:
160. We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange’s surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge. The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution. Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.
I don’t know what information the High Court based their judgment on. It is true that the legal team have done everything in their powers to make sure Julian has not been interviewed. One is setting up conditions that are impossible to meet. In my view the legal team have made a number of strategic blunders.
Repeat demands from Assange supporters
As I shown above there is no point in interviewing Julian Assange in England. There is even less point in interviewing him at the Ecuadorian Embassy. His supporters still don’t want to understand that the game is over. Julian has lost every legal argument. He is ordered to go to Sweden to face serious sex charges. It is time to go.
His legal team and his supporters haven’t given up. Now they want Julian to be interviewed in the Ecuadorian Embassy. They haven’t understood that the prosecutor is not interested in an Embassy interview, she wants to interview him in Sweden and then most likely indict him.
WACA Talking points
WikiLeaks Australian Citizens Alliance is one of the oldest and most active WikiLeaks support groups in Australia. They still claim that “Julian Assange has not been charged with any crime in any country.” Surprised? They go on:
The Swedish Government refuses to interview Julian Assange in the United Kingdom, despite it being legally possible for them to do so.
Swedish Government is not involved in the case. Swedish prosecutors are. It is correct that it is legally possible for the prosecutors to interview Julian on English soil. It is also legally possible for Swedish prosecutors to ask for assistance in taking aerial pictures of the Ecuadorian Embassy, ask for sniffer dogs and hand writing analysts. Not one of these legally possible options are wanted by the prosecutor. The prosecutor want to interview Julian Assange in Sweden and then she wants to indict him
I wonder when WACA and other supporters are going to understand that the people that decide how a criminal case is being investigated is the prosecutor with the help of the police. How they do it is based on laws. If a suspect is of the opinion that he is not treated fairly he has opportunity to make formal complaints through his lawyers. So far Julian Assange’s lawyers have not made any formal complaints. They just make silly claims in the media and cry foul. If they were convinced any errors have been made they would have backed up their media statements with formal complaints.
If WACA is interested in the case it would be an advantage if they would spend a little time reading about the Swedish Criminal Procedure.
What about the murderer in Serbia?
Julian Assange supporters claim that MLA was used by Swedish police regarding a murder suspect in Serbia in 2012 and therefore it should be used in the Assange case. This is another misrepresentation of facts. There are no similarities with the Assange case. Serbia is not part of the European Union. An EAW could not be issued. It is a very different extradition process. The police had to act in a very different manner to make sure the suspect would be extradited.
Swedish police interviewed the suspect in a Belgrade prison in March 2012. They also received help from Serbian police to conduct searches in the suspects home. After some time the suspect consented to be extradited to Sweden which he was on 29 June. Recently the suspect has been convicted of murder and he received a 16 year sentence.
What about a Swedish court in Rwanda?
A few die-hard Assangeistas now make an even sillier argument. A Swedish district court is for the first time trying a Swedish citizen suspected of genocide. Part of the evidence hearings will be conducted in Rwanda. To Assangeistas this is interpreted as Swedish courts can go anywhere in the world. “Why can’t Julian Assange be interrogated at the Ecuadorian Embassy if you can go to Rwanda?”
The suspect is originally from Rwanda. Some years ago he became a Swedish citizen. Recently he was accused of taking an active part in the genocide in Rwanda. Swedish citizens cannot be extradited outside of Europe and therefore it was not possible to extradite the suspect. Since suspicions are high it was decided that the suspect should be tried in a Swedish court. For more information click here.
The more I look into the Assange case the more I realize that Julian Assange and his legal team are involved in a disinformation campaign.They misrepresent facts and they lie about circumstances. A campaign that so far has not been successful. A campaign they will ultimately lose.
Most of their legal arguments are very weak. They just sound good. As if they were created for the media, not for a court. How can anyone think it is possible to convince an English Judge that Julian is merely a suspect, suspicion level 1, when there are two Swedish courts that have ruled that Julian is charged with probable cause, suspicion level 3? English judges sometimes wears wigs, but they do have something under it.
Why is it that after three English courts have ruled that Julian is considered charged and to be extradited, Julian and his legal team still maintain that he is not charged? I cannot believe it is their honest belief. They must be fully aware that Julian Assange is charged. If not, Julian should fire them instantly.
Why does the legal team still demand that Julian Assange should be interviewed in the Ecuadorian Embassy when they know the prosecutor as early as in October 2010 ruled out interviews in England? Does the legal team seriously believe that Julian Assange is in a bargaining position?
The more I get to know about the case the less critical I am of the police and the prosecutors. The investigation could have been done better. The information from the prosecutor could have been better. The Prosecutor General could have made some statements explaining the facts of Swedish Criminal Procedure. All true. But the biggest mistake the prosecutors have made in this case is that they have trusted Julian Assange. If they had have arrested him on 1 September when the investigation was re-opened as they would have done if it was an ordinary person the case would have been over and done with a long time ago.
Julian Assange has made a long series of mistakes from day one. Fleeing Sweden was not intelligent. Setting conditions for interviews were not clever. Maintaining he is not charged is stupid. To ask for an interview in the Ecuadorian Embassy makes me think he is a moron. Just like the Ecuadorian authorities that ask for the same thing.
This case has really opened my eyes. When I was younger I thought Human Rights lawyers were fighting for Human Rights. Now there are so many of them that make false claims, misrepresent facts and lie that I have completely lost faith in them.