Irregularities in the conduct of the Swedish prosecution in the investigation against Julian Assange
- Leaked Police Report: English and Swedish
- Why does the Prosecutor refuse to Question Assange?
- Prosecutor insists Assange be held in remand incommunicado, pre-charge, pre-trial
- Abuse of Process Argument (Feb 2011 Hearing)
- Issuing EAW is for an ’improper purpose’
- Failure to disclose evidence to the defence
- Prosecutor Discloses Assange’s identity to the Press within 2 hours
- Media Reaction to Prosecutor’s Disclosure
- Senior Prosecutor Finne demands and explanation
- No remedy for Assange
Sweden does not follow the so called "investigating judge model", and Swedish public prosecutors have very strong powers compared with the situation existing in other Member States: They may decide on any kind of measures during investigations, including coercive measures... e.g. phone surveillance, or detention. (European Commission Evaluation Report on Sweden, Doc 99227/2/08 REV 2. October 2008, para 2.1., cited in the submission by the Appellant to the Supreme Court, paragraph 24)
Al Jazeera interview with Julian Assange on 21 August 2010, just after the rape investigation was dropped
It is highly irregular in Sweden for an international arrest warrant to be sought in relation to allegations of this kind, and for a preliminary investigation where there is no charge. The only recent example of Sweden issuing an INTERPOL Red Notice and The European Arrest Warrant for sexual offences involved a repeat-offending paedophile.
What I have to say will not make me very popular with prosecutors: the suspect’s right is not always respected, prosecutors are not objective, prosecutors fight too hard to get a conviction somewhere down the line - I have seen too many accusations of this type to believe that this doesn’t happen. - Göran Lambertz, former Chancellor of Justice, 2006
Why is the Swedish Prosecutor refusing to Question Assange?
The only beneficiary from delaying the questioning of Julian Assange for 1.5 years is the US, which is preparing its case against Julian Assange, WikiLeaks, and Bradley Manning. The delay in no way benefits the two women, who were reportedly not seeking to report Assange to the police anyway, nor Julian Assange, who has been robbed of his liberty in the 500 days spanning from his detention on 7 December 2010 to the Supreme Court judgment. Marianne Ny has given no explanation, either to the two women or to Assange, why she has chosen to delay the case and handled it in such an extraordinary manner. The behaviour of the prosecutor even conflicts with her own directives to the Swedish authorities, which call for the speedy questioning of the suspect.
As can be seen from the history of these proceedings, the Swedish prosecutor takes an adversarial stance towards the person under investigation. For example, in this case, the prosecutor applied to the Stockholm District Court for a detention order in absentia for the purposes of interrogation. When the Appellant appealed to the Svea Court of Appeal against the making of that order, the Swedish prosecutor made written submissions in opposition to this appeal. The same prosecutor (Marianne Ny), having participated as a party to these proceedings before the Swedish courts, later issued the EAW, purportedly as a "judicial authority". Cited in the submission by the appellant para 25
Marianne Ny’s misleading statements about legality of questioning abroad
One of the baseless arguments that is often repeated in the Swedish press is that Julian Assange has been avoiding questioning. The press has failed to demand explanations from the disproportionate and coercive actions demanded by the prosecutor, who has not charged Assange with any crime. Marianne Ny demanded to the UK judges that Mr. Assange remain detained while in the UK, pre-charge, pre-trial. Had Marianne Ny obtained what she had asked for, Assange would have remained in prison while challenging the European extradition warrant for over 500 days. Instead, he remained under solitary confinement for 10 days and under strict house arrest conditions ever since, reporting to police daily and wearing an electronic tag on his ankle, as well as abiding to a curfew and the inability to move for 10 hours/day.
As the High Court judges, Ousley and Thomas, pointed out in the July 2011 High Court Appeal, Prosecutor Marianne Ny has not given a satisfactory reason as to why she has refused to use less coercive measures against Mr. Assange. As Justice Ousley pointed out, the system of mutual trust within the EU is conditional on the use of mechanisms such as the Mutual Legal Assistance Treaty, which establishes the mechanism for questioning a suspect abroad, particularly where the investigation has not reached an advanced stage.
The prosecutor Marianne Ny has misled the public by stating that Swedish and UK law do not permit her to question Julian Assange in the UK. Three days after Marianne Ny had issued the EAW for Julian Assange (05 December 2010), Ny falsely stated: "Both British and Swedish law prevent me from questioning Assange in London."
Prosecutor Marianne Ny has also claimed that questioning in the UK was illegal in a Time interview on 3 December 2010. This is false. Mutual Legal Assistance is clearly permitted by both Swedish and UK law. There is also a legal precedent from the Swedish Supreme Court from 2007, which acknowledges questioning via video link as proportionate when the subject is abroad. The same ruling (NJA (2007) 337) finds that it is disproportionate to issue an arrest warrant for a person who is cooperating with the judicial authorities at the preliminary investigation stage, before a decision has been made whether to prosecute.
Incidentally, Ny’s comments to the Swedish press stating that she is not permitted to question Assange in the UK have subsequently been redacted: compare the original to the redacted version. (If these links are broken click here.)
Ms. Ny will argue before the Swedish court that once Assange is surrendered into Swedish custody, he must be held incommunicado even though he has not been charged with any crime. Ms. Ny’s approach raises serious proportionality concerns given that Assange has complied for 500 days with daily visits to the UK police, a daily curfew, and agreeing to an ankle tag in order to monitor his whereabouts.
Swedish remand prisons were described by Birgitta Winberg, President, International Prison Chaplains’ Association Worldwide, as ’the worst in Europe’: "In no other country are people in isolation before they are charged", said Winberg. One article stated: "A high proportion of prisoners - as much as 70 per cent at Kronoberg, in Stockholm - are placed under restrictions that may see them in their cells for 23 hours a day. Only visits from a lawyer and priest are allowed."
’Police and prosecutors are very powerful in Sweden, the odds are stacked against the defence. They represent the strong state and, once a suspect is arrested, there is this belief the state is always right.’ - Prison Chaplain Birgitta Winberg
A Council of Europe report from 2009 said that of most remand prisoners in Sweden, an ’overwhelming majority had been given no explanation of the restrictions imposed on them. Many considered that the only reason why they were being prohibited contact with their family members was to ’break’ them.’
Abuse of Process: Feb 2011 Hearing (2011)
At the Magistrate’s Court, the Swedish Prosecution authorities are at the centre of the challenge to the validity of the EAW issued for Julian Assange:
The Swedish prosecutor Marianne Ny had not decided whether to prosecute, according to her own admissions after issuing the EAW.
The Swedish prosecutor Marianne Ny was seeking extradition for the purposes of questioning in order to further the investigation, not for the purposes of prosecuting.
Arrest for the purpose of questioning was disproportionate given that Julian Assange fully cooperated with the Swedish authorities through his lawyers in Sweden and in the UK.
The proper, proportionate and legal means of requesting a person’s questioning in the UK in these circumstances is through Mutual Legal Assistance.
Assange’s defence team argued that the Swedish Prosecution Authorities handled the preliminary investigation in a way that undermined Julian Assange’s right to a fair trial. The prosecution’s conduct amounts to an abuse that cannot be remedied in Sweden.
If I were Assange, I would not feel safe going to Sweden now. Though Assange has not been charged in Sweden, the Swedish public prosecutor has declined many offers over the past year that she question him in the UK. This raises questions of good faith. - Tony Kevin, retired Australian diplomat
The highly controversial decision to issue an EAW and an INTERPOL Red Notice for the purposes of questioning a person who was fully cooperating with the authorities was addressed by the expert witnesses at the Feb 2011 Hearing:
Leaked INTERPOL document where Marianne Ny describes herself as "Marianne Ny, Director of International Public Prosecution Office in Gothenburg". This version of the red notice is intended for judicial authorities and police only.
"Most significantly, I consider it inappropriate and disproportionate that Ms. Ny sought an INTERPOL arrest warrant and EAW for Mr. Assange. It is not clear why she refused to interview him in London, since doing so would be in accordance with the rules set forth under the terms of Mutual Legal Assistance. Ms. Ny is reported to have stated that it was incompatible with Swedish law to interrogate Mr. Assange in London. This is clearly not true. According to the International Judicial Assistance Act (2000:582), Chapter 4, Section 10, prosecutors may hold interviews by telephone during a preliminary investigation if the person in question is in another state, if that state allows [this was also confirmed in a Supreme Court ruling in Sweden, NJA 2007 337].
Expert opinion of Sven-Erik Alhem
"To use the European Arrest Warrant without first having tried to arrange an interrogation in England at the earliest possible time via a request for Mutual Legal Assistance seems to me to be against the principle of proportionality... In my view only when it was shown that it would be impossible to get Assange interrogated in England by using Mutual Legal Assistance from England, should an application for an EAW have been submitted. Since I understand that he has been willing to be interviewed by these means since leaving Sweden, I regard the prosecutor’s refusal to at least try to interview him as unreasonable and unprofessional, as well as unfair and disproportionate."
"In my opinion, a reasonable and professional prosecutor would have sought to interview Mr Assange in London in order to advance the investigation and in order to find out as soon as possible if there were reasons or not to complete the investigation... This would be possible if the British authorities agreed and I see no reason why they would not agree to that course of action. This would have been the best and most appropriate solution in order to conduct the interrogation and to obtain Mr. Assange’s extremely important evidence. I therefore really cannot understand why the prosecutor did not pursued (sic) that course."
Prosecutor Marianne Ny informed Björn Hurtig via SMS on 11 January 2011 that she could not interview Julian Assange in England because of ’investigative technique requirements’. This is because in Sweden, suspects of sexual offences are held in indefinite incommunicado detention (a practice that has led to criticism from the UN Committee Against Torture, see Rule of Law), until a decision is made of whether there are grounds to charge the suspect.
Use of EAW is for an ’improper purpose’
The Swedish prosecution repeatedly stated, shortly before and after the issuing of the EAW, that the warrant had been issued for questioning and not for prosecution. On 5 December 2010, prosecutor Marianne Ny was interviewed on the national television channel, SVT:
"We have only heard one side [of the story], not Julian Assange’s version about what happened. It’s far too early to determine whether he will be charged. - Swedish Prosecutor Marianne Ny, 5 December 2010 (3 days after EAW was issued)"
On 17 December, the Head of the Legal Department of the Swedish Prosecution Authority stated in an interview with the BBC:
"there is no charge in the sense that the criminal investigation is still going on and the prosecutor has not yet decided whether to prosecute or not." - Head of the Legal Department, Swedish Prosecution Authority, 17 December 2010 (15 days after the EAW was issued)
Issuing an EAW for the purposes of questioning is a "wholly disproportionate use of the EAW system, particularly in light of the availability of Mutual Legal Assistance. This breaches the EU principle of proportionality and is clearly not what the EAW system was intended for." (Briefing note for the EU Parliament, ’Assange’s EAW and Political Purposes’, June 2011).
Expert opinion of Sven-Erik Alhem:
"[A] prosecutor should not seek to arrest and extradite Mr. Assange simply for the purposes of questioning as long as other means have not been tried or failed."
"It should be regarded as a breach of the principles of proportionality to try to have Mr. Assange extradited purely for the purposes of questioning him in order to further the investigation."
Undue delay for Julian Assange’s interrogation
Julian Assange stayed in Sweden from the day of the complaint (20 August) to 27 September. During this time he fully cooperated with the investigation. On 30 August he voluntarily submitted himself to questioning with regards to the only allegations that were being investigated at the time, concerning AA’s complaint. After the ’rape’ allegation was revived by prosecutor Marianne Ny, his lawyers continued to cooperate with the prosecution. His defence counsel Björn Hurtig made repeated requests to the prosecutor for Julian Assange to submit himself for questioning. The prosecutor was aware that Assange had other commitments and was planning to leave the country. Ny authorised his departure on 15 September 2010, although he stayed on until 27 September.
By that time, Assange had stayed in Sweden for 37 days from the day of the complaint. Upon his departure, two laptops went missing from his luggage at Arlanda airport. The airline carrier refused to cooperate with Assange. His Swedish lawyer, Björn Hurtig, made a request to the prosecutor’s office regarding the theft, but received no reply. Hurtig continued to attempt to arrange a date with the prosecutor’s office, this time for 9 or 10 October. The prosecutor’s deputy declined, because it was a weekend. Hurtig then suggested the week starting 11 October, to which Marianne Ny responded "It’s too late". At that point, Assange traveled to the UK and instructed his Swedish and UK lawyers to arrange to be questioned in the UK, which is provided for by EU regulations of Mutual Legal Assistance.
Despite repeated efforts to arrange for questioning, the Swedish prosecutor Marianne Ny refused to cooperate. It is against procedural recommendations to delay questioning with a suspect for such a long period of time.
Sundberg-Weitman, expert witness statement at the Feb 2011 Hearing:
"Despite Ms Ny’s stated policy that men should be detained after the event and that interrogation of the suspect must take place as soon as possible, there was undue delay in questioning Mr Assange while he was in Sweden."
Failure to disclose evidence to the defence
Assange’s Swedish lawyer Björn Hurtig makes repeated requests for disclosure under Swedish Judicial Procedure Code 23.18 but is categorically denied each time by Prosecutor Marianne Ny.
According to Article 23.18 of the Swedish Procedure Code, the suspect has the right to be informed of hte charges against him in his own language and to be continiously informed of hwat has emerged from the investigations against him. This provision is subject to the proviso "to the extent that it will not affect the investigation", which in my view is interpreted too broadly by many prosecutors - including Ms. Ny in this particular case- to the detriment of the due process rights of suspects. - Expert witness Brita Sundberg-Weitman.
Finers Stephens Innocent (the law firm that represented Assange in the UK prior to Brinberg Peirce and Partners) asked Marianne Ny for a specific description of the charges and evidence in English as a condition for returning Julian to Sweden for interrogation. Marianne Ny refused.
One example is the evidence submitted by Göran Rudling, who discovered complainant AA’s deleted tweets (see Evidence Destroyed). Rudling submitted these to the investigating authorities on 15 September 2010. The prosecution never informed the defence lawyer of the existence of this evidence, "despite the fact that it revealed evidence of obvious and crucial significance to the defence, namely that one complainant had acted entirely inconsistently with her story the very day after the alleged assault and then tried to destroy the evidence".
The Swedish defence counsel Björn Hurtig was not allowed to see the notes from the new interviews with the complainants.
Hurtig was briefly allowed to view SMS from the complainants prior to the complaint. The messages spoke of revenge and of selling the story to the tabloids. Hurtig was not permitted to take copies or show Julian Assange. Hurtig was also told by the prosecutor that he should not reveal the content of the messages at the Feb 2011 Hearing. Hurtig consulted the Swedish Bar Association, which advised him that he was permitted to reveal these facts at the UK hearing.
The Swedish press obtained evidence from the preliminary investigation directly from the prosecution in August and September, despite the prosecution refusing to disclose this same evidence, which was already in the possession of the press, to Julian Assange’s lawyers in Sweden and in the UK. Björn Hurtig only received the police dossier in November, as a result of the Svea Court of Appeal hearing.
The transcripts of the questioning of Julian Assange and Johannes Wallström were immediately leaked to the press, and appeared verbatim in the tabloids. Both Assange and Wallström had asked for assurances that their testimony would not be leaked to the press.
The EAW was the first time Julian Assange was informed in writing of the specific allegations and potential charges against him in English.
The first case document received by Julian Assange or his UK lawyers was the EAW. None of the documents of the investigation have been provided to Julian Assange in English. For his UK trial, he has had to spend £20,000 for official translations in order to build his defence.
Unlawful disclosure by Prosecutor: Assange’s name disclosed to the Swedish Press 2 hours after police complaint is activated
The Expressen journalist, Stefan Söderström, was the first to receive a tip-off of the arrest warrant via SMS at 19:52. The arrest warrant had been active for just under five hours. Shortly after the tip-off, Stockholm prosector on duty Maria Häljebo Kjellstrand unlawfully disclosed to the media that Julian Assange was wanted for questioning regarding ’rape’. No action was taken against the prosecutor, although a complaint is filed to the Parliamentary Ombudsman for justice by the rights watchdog RO. That same night Expressen published the news on its frontpage. Within hours there were up to 5.000.000 references online to ’Assange+rape’. A Google search of ’WikiLeaks rape’ in June 2011 gave 11.000.000 hits.
In his expert witness statement Sven Erik Anhelm remarked:
"Let me first briefly comment on the remarkable event of the prosecutor, at the outset of the investigation on 20 August 2010, confirming to the media that Mr. Assange was considered a likely suspect of rape in Sweden and was remanded in his absence. Such confirmation to the media is, in my view, completely against proper procedure and in violation of the Swedish law and rules regarding preliminary investigations. In accordance with Swedish secrecy and confidentiality laws, confidentiality applies to everything that occurs during a preliminary investigation. The prosecutor, by confirming the identity as a suspect under investigation of rape at that early stage, therefore acted in breach of these rules - this should never have happened, but there is no remedy for it and the prosecutor has not been disciplined. The confirmation from the prosecution led to the news spreading around the world."
Media reaction to Prosecutor’s Unlawful Disclosure
Expressen 20 August 2010 ran the breaking news "WikiLeaks’ Julian Assange hunted down, suspected of rape" - the ’hunted down’ part of the headline is not found on the online version of Expressen’s article anymore (the article was updated online on 21 August 2010 after senior prosecutor Eva Finné reversed the arrest order and found there were no grounds for the ’rape’ allegations), but a picture of the full headline is available here. Mårten Schultz writes:
"At that point Assange’s integrity (confidentiality) was hugely impacted. The whole world’s media had relayed Expressen’s news, according to which Assange was suspected of rape. According to the later prosecutor’s judgement the rape allegation was false. This false information has spread all over the globe due to the Swedish media."
(Contd) "The Assange story is disgrace. After a prosecutor decided to arrest Assange, one of the most talked about people this year, all the newspapers decided to print his name. Now all of them have to redeem themselves. This story clearly illustrates the hollowness of the principle of protection of personal integrity in this media-driven society." Mårten Schultz
The chairperson of the Swedish Journalists’ Organisation stated that the Prosecuting authorities should be investigated in an interview about the disclosure with the newspaper ’Journalisten’ because it "raises concern over the state of due process/presumption of innocence (rättssäkerheten) in Sweden when a person who has been reported all of a sudden finds himself arrested in absentia without having had the opportunity to give their version of what happened".
The disclosure of Assange’s identity by junior prosecutor Maria Häljebo Kjellstrand and the media flurry that ensued led to the Prosecutor General intervening in the case on 21 August. Senior prosecutor Mats Åhlund confirmed to the tabloid Expressen that the Prosecutor General called him and instructed him to change the prosecutor handling the case on 21 August 2010.
The new lead prosecutor decided to reverse the decision of the first prosecutor (Maria Häljebo Kjellstrand). At 16.48 (21 August 2010) Assange’s in absentia detention was cancelled. The investigation into the alleged rape investigation was dropped. Finné issues a press statement: "I consider that there are no grounds for suspecting that he has committed rape."
Swedish Prosecution authority defends the prosecutor’s arrest and unlawful disclosure
Al Jazeera interviewed Karin Rosander, spokesperson for the Prosecution Authority, who defended the decision of the on-duty prosecutor (MHK). The spokesperson claimed that the issuing of the arrest order was ’no mistake’ because it had been part of ’normal procedure’ and she ’had to make a decision very quickly’. She claimed that the reason why the ’rape’ allegation was withdrawn on 21 August by senior prosecutor Eva Finné was she ’had more information than the prosecutor the previous afternoon’. Rosander stated in an interview in the Swedish press: "The prosecutor will continue to look at the complaint and the investigation continues. It is natural to begin with the most serious allegation first because it implies the deprivation of liberty. It is a serious infringement of integrity."
The information that senior prosecutor Eva Finné had had access to on 21 August that the on-duty prosecutor (MHK) on 20 August did not was the testimony of complainant SW.
MHK (prosecutor 1) issued the warrant for Assange’s arrest at 17:00 (20 August 2010), although the questioning of complainant SW had only begun at 16:21. It lasted until 18:40, when Irmeli Krans decided to interrupt the questioning because Krans and complainant SW were informed that Prosecutor 1 arrested Julian Assange in absentia for her rape. The next day the senior prosecutor Eva Finné (prosecutor 2) reviewed the evidence, which prosecutor 1 (MHK) had not had access to, and rescinded the arrest warrant.
Senior prosecutor Eva Finné demands an explanation
In connection with the cancellation of the arrest warrant and damage control, the second prosecutor Eva Finné asks the supervisor Linda Wassgren at Klara police station to explain how the decision to request an arrest warrant came about, and how the complaint was handled when the complainants arrived at the police station. The memo from Wassgren to Finné was released to the press. Entire sentences are blanked out.
In the memo, Wassgren states the initial allegation was that both complainants had been raped. Complainant SW had contacted complainant AA on 19 August, and they decided to go to the police station together. After an initial conversation with both women at the police station, Wassgren spoke to the two women separately (this conversation is not on record). Wassgren called the domestic violence unit and the head of Norrmalm police station to request how to proceed. Wassgren then contacted Prosecutor 1 (MHK) via telephone, who decided to arrest Julian Assange in absentia for rape at 17:00. Everyone she spoke to agreed that the case (or cases?) concerned rape [despite the fact that the formal interrogation of complainant SW had not yet been held].
The memo makes no mention of sexually transmitted diseases (at least as far as the disclosed part shows). Wassgren refers to the two women "arriving at the police station in order to get some guidance about two earlier events because they were unsure about how to proceed". She then she goes on to say:
"Initially rape was mentioned [the memo does not specify by who] in the case of both complainants", AA and SW. Therefore both complainants’ investigations were initially treated as ’rape’ cases (this is also in keeping with the ’double rape’ headline in the Expressen tabloid that appeared that same evening. (See page 8 of Göran Rudling’s witness statement.)
No remedy for Julian Assange
Both the unlawful disclosure and the negative Media climate in Sweden are abuses originating in the Swedish prosecution that cannot be remedied, along with the Prime Minister’s interference with the court case (further creating hostility in the Swedish media against Julian Assange) on 7 February 2011. The District Court judge acknowledged that "There has been considerable adverse publicity in Sweden for Mr Assange, in the popular press, the television, and in Parliament (by the Swedish Prime Minster (sic) )" in his judgement, p. 10 item 19).
But the judge said that this would ’play no part’ in the trial because ’the jury system... is robust’ (p. 25 of the judgement). In fact the system of lay judges has been criticised from within Sweden for some time. See Lay Judges.
See a general analysis of the Swedish press’ reporting on the allegations against Assange and the court case in the UK in Media climate in Sweden.
- 12 March 2012: What hard evidence is the prosecutor withholding? Dave Phillips offers a A Most Wanted List of Missing Items in the Julian Assange Case, guest featured in Proffessor’s blogg (March, 2012). See Investigation for more.
- 8 December 2011: A compilation of recent critique on Marianne Ny’s use of the EAW as a fishing expedition (that is to say, simply for questioning in a preliminary investigation instead of for the purposes of prosecution when a decision has been made to charge and an indictment has been initiated). The commentary also talks about Sweden’s use of pre-trial detention, which has been deemed unlawful by the Council of Europe’s Committee for the Prevention of Torture and other Inhumane and Degrading Treatment and the UN Committee Against Torture.
Brita Sundberg-Weitman’s Expert Opinion
Björn Hurtig’s letter to Jennifer Robinson
Björn Hurtig: Sweden breaches Human Rights Convention
Rixstep: Per E. Samuelsson interview
thinq_: Summary of briefing to the Australian Parliament by Jennifer Robinson