Assange v Swedish Prosecution Authority
The Swedish Prosecution Authority
|Court||Supreme Court of the United Kingdom|
|Argued||1–2 February 2012|
|Decided||30 May 2012|
|Neutral citation|| UKSC 22|
|Prior action(s)|| EWHC 2849 (Admin),  EWCA Civ 2849|
|A European Arrest Warrant issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the Extradition Act 2003.|
|Majority||Lord Phillips, joined by Lord Brown, Lord Dyson, Lord Kerr and Lord Walker|
|Dissent||Lady Hale, Lord Mance|
|Area of law|
|Extradition (European Arrest Warrant)|
Assange v The Swedish Prosecution Authority were the set of legal proceedings in the United Kingdom concerning the requested extradition of Julian Assange to Sweden to further a 'preliminary investigation' into accusations of his having committed sexual offences. The proceedings began in 2012 and on 12 August 2015, Swedish prosecutors announced that they would drop their investigation into three of the allegations against Assange, because of the expiration of the statute of limitations. The investigation into the allegation of rape, as of 19 May 2017, has been dropped by Swedish authorities. A disputed issue over the course of the legal proceedings was the claimed fear that Assange could ultimately be extradited to United States of America should he be sent to Sweden.
In May 2019, Swedish prosecutors reopened the investigation against Assange. The prosecutors mentioned their intent to seek extradition of Assange from the United Kingdom after he has served his 50-week prison sentence for skipping bail.
In June 2019 the Uppsala District Court denied a request to have Assange detained and thereby prevented Assange's extradition to Sweden. It said the Swedish investigation did not require Assange's presence in Sweden and the prosecutor said she intended issuing a European Investigation Order to interview Assange instead.
The prosecution announced that the investigation had been dropped as of 19 November 2019.
Complaints and initial investigation
On 20 August 2010, two women, a 26-year-old living in Enköping and a 31-year-old living in Stockholm, reported to the Swedish police that Assange had engaged in unprotected sexual activity with them that violated the scope of their consent, also because one woman was asleep in one case. The police told them that they could not simply tell Assange to take an STD test, but that their statements would be passed to a prosecutor.
The next day, the case was transferred to Chefsåklagare (Chief Public Prosecutor) Eva Finné. In answer to questions surrounding the incidents, the following day, Finné declared, "I don't think there is reason to suspect that he has committed rape". However, Karin Rosander from the Swedish Prosecution Authority, said Assange remained suspected of molestation. Police gave no further comment at the time, but continued the investigation.
After learning of the investigation, Assange said, "The charges are without basis and their issue at this moment is deeply disturbing".
The preliminary investigation concerning suspected rape was discontinued by Finné on 25 August, but two days later Claes Borgström, the attorney representing the two women, requested a review of the prosecutor's decision to terminate part of the investigation.
On 30 August, Assange was questioned by the Stockholm police regarding the allegations of sexual molestation. He denied the allegations, saying he had consensual sexual encounters with the two women.
On 1 September 2010, Överåklagare (Director of Public Prosecution) Marianne Ny decided to resume the preliminary investigation concerning all of the original allegations. On 18 August 2010, Assange had applied for a work and residence permit in Sweden. On 18 October 2010, his request was denied. He left Sweden on 27 September 2010. Assange's London lawyer Mark Stephens said that Assange had asked to be interviewed by prosecutors before leaving Sweden but was told he could leave the country without being interviewed. Swedish prosecutors said that on the day Assange left Sweden they had informed Assange's Swedish lawyer Björn Hurtig that an arrest warrant would be issued for Assange.
On 18 November 2010, Marianne Ny ordered the detention of Julian Assange on suspicion of rape, three cases of sexual molestation and unlawful coercion. The Stockholm District Court acceded to the order and issued a European Arrest Warrant to execute it. The warrant was appealed to the Svea Court of Appeal which upheld its issuance, but lowered it to suspicion of rape of a lesser degree, unlawful coercion and two cases of sexual molestation rather than three. The warrant was also appealed to the Supreme Court of Sweden, which decided not to hear the case. Assange's legal team argued that there is no such thing as "minor rape", that "rape" is a mistranslation from Swedish, and that the allegations given do not meet the English or European legal definition of "rape".
At this time Assange had been living in the United Kingdom for 1–2 months. An extradition hearing took place in an English court in February 2011 to consider an application by Swedish authorities for the extradition of Assange to Sweden. The outcome of the hearing was announced on 24 February 2011, when the extradition warrant was upheld. Assange appealed to the High Court. On 2 November 2011, the court upheld the extradition decision and rejected all four grounds for the appeal as presented by Assange's legal representatives. £19,000 costs was also awarded against Assange. On 5 December 2011, Assange was refused permission by the High Court to appeal to the Supreme Court. The High Court certified that his case raised a point of law of general public importance. The Supreme Court subsequently granted permission to appeal, and heard the appeal on 1 and 2 February 2012. The court reserved its judgment and dismissed the appeal on 30 May 2012. Assange has said the investigation is "without basis". He remained on conditional bail in the United Kingdom.[failed verification][failed verification] On 19 June 2012, Assange sought refuge at Ecuador's Embassy in London and was granted temporary asylum. On 16 August 2012, he was granted full asylum by the Ecuadorian government.
Review of detention order
On the 24 June 2014, The Guardian reported that Assange's lawyers filed a request to Stockholm District Court to dismiss his detention, based on an update to Sweden's code of judicial procedure (1 June 2014) to conform with EU law including a new provision that those arrested or detained have the right to be made aware of "facts forming the basis for the decision to arrest".
On 16 July 2014, the Stockholm District Court reviewed the detention order on request by Assange. During the course of the proceedings, Assange's defence lawyers said that the prosecutors have a "duty" to advance the case, and that they had shown "passivity" in refusing to go to London to interview Assange. After hearing evidence, the district court concluded that there was probable cause to suspect Assange of committing the alleged crimes, and that the detention order should remain in place.
In response, Assange's Swedish legal team stated to Radio Sweden: "We still think we have very good legal arguments to get this decision overruled, so we are confident in the result of the appeal. We think the court of appeal can make another decision on the same arguments as the district court." Ecuador immediately issued a statement: "The Ecuadorian Government reaffirms its offer of judicial cooperation to the Kingdom of Sweden, to reach a prompt solution to the case. In this sense Ecuador keeps its invitation to judicial officers visit the London Embassy so that Julian Assange can be interviewed or via videoconference. Both possibilities are explicitly referred in the current procedural legislation in Sweden and the European Union."
On 20 November 2014, the Swedish Court of Appeal refused Assange's appeal, upholding the 2010 detention order, though at the same time issuing a statement criticising the prosecution for not having done more to advance the case by proceeding with an interrogation of Assange.
Inquiry into three of the allegations dropped
On 12 August 2015, Swedish prosecutors announced that, as the statute of limitations for the less serious allegations had run out, and they had not succeeded in interviewing Assange, they would end part of their preliminary investigation. After 18 August 2015, Assange could no longer be charged for any of the three less serious charges. However, the preliminary investigation into the more serious allegation remained open as the statute of limitations for this charge was not expected to expire until 2020. Swedish authorities interviewed Assange on this allegation in November 2016.
Revocation of arrest warrant
On 19 May 2017, the Swedish chief prosecutor applied to the Stockholm District Court to rescind the arrest warrant for Julian Assange, effectively ceasing their investigation against Julian Assange. The case may be reinstated until the expiration of the statute of limitations. Additionally, Britain's arrest warrant pertaining to bail violations remains open.
In 2013, Sweden tried to drop Assange extradition but the English Crown Prosecution Service dissuaded them from doing so.
After withdrawal of political asylum in April 2019
In May 2019 Swedish Deputy Director of Public Prosecutions Eva-Marie Persson applied to have Assange detained as a prelude to the issue of a European arrest warrant and extradition to Sweden. The Uppsala District Court denied the request stating that the investigation did not require Assange's presence in Sweden. Persson said she intended issuing a European Investigation Order to interview Assange instead.
The prosecution announced that the investigation had been dropped as of 19 November 2019.
First instance proceedings
Detention and bail
Assange presented himself to the Metropolitan Police on December 7, 2010, and was remanded to London's Wandsworth Prison. On 16 December, he was granted bail with bail conditions of residence at Ellingham Hall, Norfolk, and wearing of an electronic tag. Bail was set at £240,000 surety with a deposit of £200,000 ($312,700).
On release on bail, Assange said "I hope to continue my work and continue to protest my innocence in this matter," and told the BBC, "This has been a very successful smear campaign and a very wrong one." He claimed that the extradition proceedings to Sweden were "actually an attempt to get me into a jurisdiction which will then make it easier to extradite me to the US." Swedish prosecutors have denied the case has anything to do with WikiLeaks.
The extradition hearing took place on 7–8 and 11 February 2011 before the City of Westminster Magistrates' Court sitting at Belmarsh Magistrates' Court in London. Assange's lawyers at the extradition hearing were Geoffrey Robertson QC and Mark Stephens, human rights specialists, and the prosecution was represented by a team led by Clare Montgomery QC. Arguments were presented as to whether the Swedish prosecutor had the authority to issue a European Arrest Warrant, the extradition was requested for prosecution or interrogation, the alleged crimes qualified as extradition crimes, there was an abuse of process, his human rights would be respected, and he would receive a fair trial if extradited to Sweden.
The outcome of the hearing was announced on 24 February 2011, when the extradition warrant was upheld. Senior District Judge Howard Riddle found against Assange on each of the main arguments against his extradition. The judge said "as a matter of fact, and looking at all the circumstances in the round, this person (Mr Assange) passes the threshold of being an accused person and is wanted for prosecution." Judge Riddle concluded: "I am satisfied that the specified offences are extradition offences."
Assange commented after the decision to extradite him, saying "It comes as no surprise but is nevertheless wrong. It comes as the result of a European arrest warrant system run amok."
Appeal to the High Court
On 2 March 2011, Assange's lawyers lodged an appeal with the High Court challenging the decision to extradite him to Sweden. Assange remained on conditional bail. The appeal hearing took place on 12 and 13 July 2011 at the High Court in London. The judges' decision was reserved, and a written judgment was delivered on 2 November 2011, dismissing the appeal.
Appeal to the Supreme Court
The High Court refused permission to appeal to the Supreme Court, but this was granted by the Supreme Court itself, after the High Court certified that a point of law of general public importance was involved in its decision.
The point of law certified was whether the wording Judicial Authority in the 2003 Extradition Act was to be interpreted as a “person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties” or if it “embraces a variety of bodies, some of which have the qualities of impartiality and independence …and some of which do not.”
The court granted Assange two weeks to make an application to reopen the appeal after his counsel argued the judgments of the majority relied on an interpretation of the Vienna Convention on the Law of Treaties that was not argued during the hearing. The application was rejected on 14 June, thereby exhausting Assange's legal options in the United Kingdom.
Ecuador asylum and bail forfeiture
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From 19 June 2012, Assange lived in the Embassy of Ecuador in London, where he asked for and was granted political asylum. Because Assange did not comply with his bail conditions, his supporters forfeited £93,500.
Assange remained in the Ecuadorian embassy until 11 April 2019, when he was arrested by the Metropolitan Police Service (for violating his 2012 bail conditions) after the police were invited in by the Ambassador of Ecuador to the United Kingdom.
Assange's lawyers invited the Swedish prosecutor four times to come and question him at the embassy, but the offer was refused. In March 2015, faced with the prospect of the Swedish statute of limitations expiring for some of the allegations, the prosecutor relented and agreed to question Assange in the Ecuadorean embassy. The UK agreed to the interview in May awaiting Ecuadorean approval.
Assange said he would go to Sweden if provided with a diplomatic guarantee that he would not be turned over to the United States, to which the Swedish foreign ministry stated that Sweden's legislation does not allow any judicial decision like extradition to be predetermined. However, the Swedish government is free to reject extradition requests from non-EU countries, independent of any court decision.
Assange was arrested in his absence and wanted for questioning in relation to accusations against him of rape and sexual molestation. This was the first step in the criminal prosecution procedure in Sweden, and only after the questioning would the prosecution authority be able to formally indict him.
Role of the Crown Prosecution Service
In 2011, the CPS advised Swedish prosecutors not to interview Assange in Britain. In the same year, the CPS told Swedish prosecutor Marianne Ny that year: "It is simply amazing how much work this case is generating. It sometimes seems like an industry. Please do not think this case is being dealt with as just another extradition."
When the CPS was advised by Swedish prosecutors that it could drop the extradition case in August 2012, the CPS lawyer handling the case wrote: "Don’t you dare get cold feet!!!".
After previously stating that she could not question a suspect by video link or in the Swedish embassy, prosecutor Marianne Ny wrote to the CPS in 2013. Her letter said that she intended to lift the detention order and withdraw the European arrest warrant as the actions were not proportionate to the costs and seriousness of the crime. In response, the CPS tried to dissuade Ny from doing so.
On 20 October 2015, a new batch of documents resulting from a FOIA request to the Swedish authorities filed by the Italian news magazine l'Espresso was published online. They contain records of correspondence between the Swedish Prosecution Authority and the Crown Prosecution Service. A CPS lawyer wrote in an email to Marianne Ny that "it would not be prudent for the Swedish authorities to try to interview the defendant in the UK... He would of course have no obligation under English law to answer any questions put to him.... any attempt to interview under strict Swedish law would invariably be fraught with problems." Referring to the case itself, he wrote, "It is simply amazing how much work this is generating... Do not think that the case is being dealt with as just another extradition request." Assange's legal team stated that, following these revelations, they would probably challenge the extradition request in court again.
Assange’s supporters have accused the CPS of changing its description of the status of the case to suit its own interests. They state that the CPS declared the case as live in April 2013 in order to avoid satisfying a personal data request by Assange and said the case was closed in 2014 to justify its deletion of emails about the case.
Decision to interview Assange in London
In March 2015, Marianne Ny indicated that she would allow Assange to be interviewed in London, and that the interview would be conducted by a deputy prosecutor, Ingrid Isgren, as well as a police investigator. In December 2015, Ecuador stated that it had reached a deal with Sweden which would allow him to be interviewed in the Embassy. In September 2016, Ecuador set a date for Assange's interview over the rape allegation. The date was 17 October 2016. It was established that the interview would be conducted by an Ecuadorian prosecutor, with Isgren and a police officer present. The interview was subsequently postponed until 14 November 2016, "to ensure the presence of Mr Assange’s attorneys," according to a spokesman for Assange's legal team. According to Assange's lawyer, the "shape" of the questions was still being discussed a week before the scheduled interview. Assange released his testimony to the public on 7 December. In his statement, Assange says that his Swedish lawyer was not actually permitted to be present during the interview, among many other complaints concerning the length and irregularities of the process and events leading up to it.
Opinion of arbitrary detention by UN Working Group and move to lift European arrest warrant
On 5 February 2016, it was announced by the Office of the United Nations High Commissioner for Human Rights that the Working Group on Arbitrary Detention had found that Assange is effectively being held in arbitrary detention by the UK and Swedish governments. High Commissioner Zeid Ra'ad al Hussein reaffirmed later the same month that the opinion is based on international law. Immediately following the opinion's publication, Assange's lawyers asked the Stockholm District Court to lift the European arrest warrant. On 14 April, the Swedish prosecution authorities responded saying the warrant should be upheld. The Svea Court of Appeal decided to uphold the warrant on 16 September. After being asked by the British to review the case, the Working Group on Arbitrary Detention formally declined to do so in late November, saying that there was not enough new information provided to warrant such a review.
Offers to Obama Administration
Assange and his supporters have expressed concerns that upon his return to Sweden, Assange may be extradited to the United States to face charges related to his professional work, since Wikileaks has been under investigation in the US since at least 2010. On 13 January 2017, Wikileaks announced that Assange would agree to extradition to the United States if the Obama administration granted clemency to Chelsea Manning though he claimed the charges that might be pressed against him there had no merit. The offer followed one made via Assange's attorney in September 2016 that an extradition waiver would be made conditional on a pardon for Manning. Chelsea Manning's sentence was commuted on Obama's last day in office but Assange's lawyers stated that the 120 day delay in her release did not meet the conditions of their offer. As of May 2017, the United Kingdom is refusing to deny rumours that it has received extradition requests from the United States.
Statements made by Trump Administration
Two weeks before the Swedish arrest warrant for Assange was dropped, one of his lawyers, Per Samuelson, reiterated his opposition to it saying "With the Supreme Court's own reasoning, his detention should now be rescinded because we can now prove that the U.S. is hunting Julian Assange." This followed public statements made by CIA Director Mike Pompeo that Wikileaks was a "hostile intelligence service" and Attorney General Jeff Sessions that the U.S. was stepping up its efforts against leaks of sensitive information when asked about Assange.
UN Special Rapporteur on Torture, Nils Melzer investigated the rape accusations against Assange and said he had not seen a comparable case where a person was subjected to nine years of a preliminary investigation for rape without charges being filed. He said Assange's lawyers made over 30 offers to arrange for Assange to visit Sweden in exchange for a guarantee that he would not be extradited to the U.S and described such diplomatic assurances as routine international practice. Melzer criticised the Swedish prosecutors for, among other things, allegedly changing one of the women's statements without her involvement in order to make it sound like a possible rape. Melzer describes the Swedish rape investigation as "abuse of judicial processes aimed at pushing a person into a position where he is unable to defend himself". One of the women interviewed by Melzer later sharply criticised him and demanded his resignation. She said that by defining how a "proper rape-victim" would have to act, Melzer was engaging in victim blaming and that his report was partially "untrue and defamatory".
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