Assange v Swedish Prosecution Authority

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Assange v Swedish Prosecution Authority
Middlesex.guildhall.london.arp.jpg
Court Supreme Court of the United Kingdom
Full case name Julian Paul Assange v Swedish Prosecution Authority
Decided 30 May 2012
Citation(s) [2012] UKSC 22
Case history
Prior action(s) Assange v The Swedish Judicial Authority [2011] EWHC 2849 (Admin)
(2 November 2011)
Appealed from Administrative Court
(Sir John Thomas P · Ouseley J)
Appealed to Supreme Court
Court membership
Judges sitting Lord Phillips of Worth Matravers
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Mance
Lord Kerr of Tonaghmore
Lord Dyson
[1]

Julian Assange v Swedish Prosecution Authority is the set of legal proceedings in the United Kingdom concerning the requested extradition of Julian Assange to Sweden to further a 'preliminary investigation'[2][3] in to Swedish state-issued accusations of his having committed sexual offences.

Arrest warrant[edit]

On 18 November 2010, the Stockholm District Court upheld an arrest warrant against Assange on suspicion of rape, unlawful coercion and three cases of sexual molestation. The warrant was appealed to the Svea Court of Appeal which upheld it but lowered it to suspicion of rape of a lesser degree, unlawful coercion and two cases of sexual molestation rather than three,[4][5] and the warrant was also appealed to the Supreme Court of Sweden,[6] which decided not to hear the case. 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, and 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,[7] and heard the appeal on 1 and 2 February 2012.[8] The court reserved its judgment and dismissed the appeal on 30 May 2012.[9] Assange has said the investigation is "without basis". He remained on conditional bail in the United Kingdom[10][11][12] until 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.

Swedish investigation[edit]

Complaints and initial investigation[edit]

On 20 August 2010 two women brought complaints to the Swedish police regarding Julian Assange. The women involved were a 26-year-old in Enköping and a 31-year-old in Stockholm.[13][14]

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 that time, but continued the investigation.[15]

After learning of the investigation, Assange said, "The charges are without basis and their issue at this moment is deeply disturbing."[16]

The preliminary investigation concerning suspected rape was discontinued by Finné on 25 August,[17] 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.[17][18]

On 30 August, Assange was questioned by the Stockholm police regarding the allegations of sexual molestation.[10][19] He denied the allegations, saying he had consensual sexual encounters with the two women.[16][20][21]

Investigation reinstated[edit]

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.[22][23] On 18 October 2010, his request was denied.[22][23][24] He left Sweden on 27 September 2010.[25] The Swedish authorities have asserted that this is the same day that they notified Assange's lawyer of his imminent arrest.[26]

On 18 November 2010, the Stockholm District Court ordered Assange detained in absentia, on request by prosecutor Marianne Ny. As basis for the ruling, the court stated Julian Assange to be suspected on reasonable grounds to have committed rape[27] (våldtäkt), unlawful coercion[27] (olaga tvång), and three cases of sexuellt ofredande[28] — which has been variously translated as "sexual molestation",[29] "sexual assault",[30] "sexual misconduct", "sexual annoyance", "sexual unfreedom", "sexual misdemeanour", and "sexual harassment".[24][31][32][33]

As special reasons for the detention, the court named a risk of the suspect absconding or avoiding justice; that the penalty for the alleged crimes is at least two years imprisonment; and the lack of any obvious reason not to detain.[34]

The decision was appealed by Assange on 22 November to the Svea Court of Appeal, which two days later upheld the warrant but lowered it to suspicion of rape of a lesser degree, unlawful coercion and two cases of sexual molestation rather than three.[4][5][31][35] On 30 November Assange appealed to the Supreme Court of Sweden which decided not to consider a further appeal as no principle was at stake.[6]

On 6 December 2010, Scotland Yard notified Assange that a valid European arrest warrant had been received.[36]

Extradition process[edit]

First instance proceedings[edit]

Detention and bail[edit]

Assange presented himself to the Metropolitan Police the next morning and was remanded to London's Wandsworth Prison.[37] 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).[38]

On release on bail, Assange said "I hope to continue my work and continue to protest my innocence in this matter,"[39] and told the BBC, "This has been a very successful smear campaign and a very wrong one."[40] 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.[38]

Extradition hearing[edit]

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.[41][42] 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.[43] 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.

Extradition decision[edit]

The outcome of the hearing was announced on 24 February 2011, when the extradition warrant was upheld.[44][45][46] Senior District Judge Howard Riddle found against Assange on each of the main arguments against his extradition.[47] 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."[47] Judge Riddle concluded: "I am satisfied that the specified offences are extradition offences."[47]

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."[48]

Appeal to the High Court[edit]

On 2 March 2011, Assange's lawyers lodged an appeal with the High Court challenging the decision to extradite him to Sweden.[49] Assange remained on conditional bail.[49][50] 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.[51][52][53][54][55]

Appeal to the Supreme Court[edit]

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.”[56]

The Supreme Court heard the appeal on 1 and 2 February 2012.[8] The court reserved its judgment,[57] and dismissed the appeal by a 5–2 majority on 30 May 2012.[9][58]

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.[59] The application was rejected on 14 June, thereby exhausting Assange's legal options in the United Kingdom.[60]

Barring any appeal to the European Court of Human Rights in Strasbourg, extradition was expected to take place over a ten-day period commencing on 28 June 2012.[61]

Ecuador asylum request[edit]

Since 19 June 2012, Assange has lived in the Embassy of Ecuador in London, where he asked for and was granted political asylum.[62] Assange has claimed he would go to Sweden if provided with a diplomatic guarantee that he would not be turned over to the United States[63] but the Swedish foreign ministry stated that Sweden's legislation does not allow any judicial decision like extradition to be predetermined.[64]

Clarifications[edit]

No charges exist[edit]

Assange has not been charged with any offence.[65]

Marianne Ny's statements[edit]

The Swedish prosecutor Marianne Ny said that, in accordance with the Swedish legal system, charges can be laid only after extradition and a second round of questioning. In sworn written testimony which she submitted to the Westminster Magistrates' court for Assange's hearing, she stated: "Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be launched with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries."[66]

On the 1st of July 2014, the prosecutor Marianne Ny released a statement in Swedish in which she addressed the question of whether it is still necessary to put Assange in pre-trial custody in Sweden (known as häkte.) She said that there are still grounds for wanting to put Assange in häkte, as, according to her, there is sufficient cause to believe that he may have been responsible for the crimes that he is alleged to have committed. Additionally, he is viewed as a flight risk.

She also reinterated her reasons for not wanting to interview Assange in London, which she had expressed in an earlier statement.[67] According to her, it is vital that Assange be available in Sweden in case the police investigation results in a trial, and in case he is found to be guilty and receives a sentence. Also, Assange's unwillingness to allow himself to be extradited cannot be viewed as a reason for the prosecutor to change her mind about putting him in häkte, she explained.

She also addressed the question of whether Assange has been deprived of his freedom for a disproportionate length of time. According to the prosecutor, it was his own decision to question the validity of the European arrest warrent that caused delays. Extradition would happened quickly if it had not been contested. It is her view that Assange cannot be regarded as being currently deprived of his freedom as he is out of the reach of the British police and is in the Ecuadorean Embassy of his own free will. He cannot also be viewed as being deprived of his freedom when he was out on bail to the extent that it could be seen as disproportionate or the equivalent of being in häkte. The only period during which Assange has been deprived of his freedom to this extent, according to Marianne Ny, is the period of the 7-16 December 2010.[68][69]

References[edit]

  1. ^ "Judicial Sittings For Hilary Term", Supreme Court of the United Kingdom (2012) p. 4.
  2. ^ Douglas Stanglin (September 2010). "Sweden reopens rape investigation against Wikileaks founder Julian Assange". USA Today. 
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