on assange, britain, sweden, extradition and taking rape charges seriously

If all parties concerned were actually serious about rape charges, and serious about making sure all parties get their day in court to either clear their name, or to have suitable justice served, we would have long ago seen an arrangement for the allegations against Julian Assange in Sweden resolved entirely independently of any extradition fears or anything at all to do with Wikileaks for that matter (unless one of the cables in the repository contains information on Assange’s purported relationships with any of these women).

That is, if we took rape charges and women seriously. But we don’t.

I don’t know if the promise extracted from Sweden to not extradite Assange without the go ahead from Britain is meaningful. I don’t know whether Sweden is considered likely to abide by it, or if Britain is likely to block any such request. What I really don’t understand is all of this going on without any formal charges from Sweden. As I understand the legal definition of extradition, it involves charged and/or convicted persons. Given that, I would think the entire matter could be taken care of with no extradition issues. From reading the judge’s opinion, it seems that Sweden wants to interrogate Assange regarding the allegations — and this needs to be done in person — before deciding whether or not to charge him. But it has been reported that Sweden previously already decided not to charge him, so this whole thing is murky.

I have said before, I think these issues should be taken care of separately. I do think they should be taken seriously and addressed and cleared off the deck — either clear Assange and let him freely leave Sweden afterwards, or to be properly charged, undergo a trial and either be acquitted or serve the sentence — in Sweden — as appropriately convicted and then — again — freely leave Sweden. This would be the fairest arrangement for all parties concerned.

The matter of Wikileaks can — and should — be played out entirely separately.

Mixing the two together is exactly the sort of cynical ploy — both deliberate and unconscious — that results when rape culture (even across cultures) is the norm. And that is why we see otherwise decent people weighing in on this ruling in so many conflicting ways, that’s why the women involved in the complaints have been treated so terribly in the court of public opinion. (Regardless of whether you believe Assange would be convicted or acquitted if he were charged and brought to trial: the women at the center of the allegations should never have been publicly attacked and threatened as they were.)

While there has been plenty of commentary, from all sides of the issue, I urge you to start with the ruling itself, which is here (pdf).

The EAW is explained here: European Arrest Warrant. Notice this: “An EAW can only be issued for the purposes of conducting a criminal prosecution (not merely an investigation), or enforcing a custodial sentence. It can only be issued for offences carrying a maximum penalty of 12 months or more. Where sentence has already been passed an EAW can only be issued if the prison term to be enforced is at least four months long.” (cf: source). This is why I don’t understand Sweden’s use of the EAW when they have not filed charges against Assange. The judge addresses Sweden’s need to question Assange on pages 17-20 but this seems to me the weakest part because Assange still isn’t charged — can’t be, according to Sweden, until he is interviewed. Once he is interviewed, then he could be charged (and at that point eligible under EAW). So why not interview him on neutral ground?

Extradition rules normally prevent a suspect from being sent to a country on one charge and then being hit with other charges. In the EAW, this is the Article 28 that Judge Riddle refers to:

Article 28

Surrender or subsequent extradition

1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases:

(a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it;

(b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel;

(c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g).

3. The executing judicial authority consents to the surrender to another Member State according to the following rules:

(a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2);

(b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision;

(c) the decision shall be taken no later than 30 days after receipt of the request;

(d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.

For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein.

4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.

So in reading this, particularly 4., Sweden can’t turn Assange over to the U.S. unless Britain okays it. As I said above, though, I don’t know how meaningful this is. Is Britain committed to blocking such a request, or not? I’m not even sure asking what the norm is in these situations is a reasonable question, since there’s not much normal about all of this. Are these kind of requests often made (e.g., what is the reasonable expectation that the U.S. would make such a request)? If they are, how often does the other country grant or block it (e.g., what is the reasonable expectation of Britain’s response if the U.S. makes such a request)? Is past performance or precedent a likely predictor for answering these questions? Is it possible for Assange’s legal team to arrange for specific assurances that extradition to the U.S. will not happen from Sweden while settling the Swedish matter?

On the other hand, I’m not especially fond of one of the attempts to discredit Ms Ny by calling her a “well-known radical feminist.” Really? *facepalm* COME ON. If she is dealing with matters inconsistently or incorrectly, it’s sufficient to point those instances out without dragging in further description.

Point 15 on page 10 is not good.

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. He says he realised the mistake the night before giving evidence. He did correct the statement in his evidence in chief (transcript p.83 and p.97).
However, this was very low key and not done in a way that I, at least, immediately grasped as significant. It was only in cross-examination that the extent of the mistake became clear. Mr Hurtig must have realised the significance of paragraph 13 of his proof when he submitted it. I do not accept that this was a genuine mistake. It cannot have slipped his mind. For over a week he was attempting (he says without success) to contact a very important client about a very important matter. 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.

Ouch.

Page 14/15 discusses the investigation versus charges issues of the EAW and if I understand correctly this is hinging on a question of translation, and the judge has decided to go with the English version he has (detailed in pages 13-15). Page 20 summarizes the Judge Riddle’s findings.

Assange seems to have expected this outcome:

Kommentar från John John:
How Do u feel about the court decision today?
torsdag 24 februari, 2011 22:50 John
22:54

Julian Assange: It was not a surprise. Over 95% of EU arrest warrants result in such an outcome in the lower courts. The judge involved, Riddle was the same judge that first put me in prison. I am of course, annoyed at the tremendous distraction from our work in the revolutions in the middle east. This angers me, but on the other hand, the process does mean we and others such as Fair Trials International can inspire law reforms in Sweden and europe.

In addition:

Kommentar från Maria Maria:
What do you base your assumptions on that Sweden will send you to USA?
torsdag 24 februari, 2011 22:54 Maria
23:04

Julian Assange:
This is an interesting question that few people have looked at with any depth. Onwards extradition – to the United States – entirely a matter of politics. The Swedish Prime Minister has refused to block such an extradition, saying, falsely, that it is a matter entirely for the judiciary, while at the same time pathetically pandering with his other commentary on the case. Infact, he has the power, in the Swedish extradition relationship with the US, to disqualify my extradition. He refuses. According to what I have been told of the protocol between Sweden and the UK, and the US and the UK, the Home Secretary of the UK, simiarly has such power to politically veto such an extradition. The British government, thus far, has refused to do so. Now, while it is convention that an extradition from the UK or Sweden to the US would require the US to agree to not execute or torture me or other european based WikiLeaks staff, any such diplomatic guarentee would be meaningless. Sweden went through that formalism with its CIA assisted extraditions to Egypt, which were immediately ignored. In the US many senior politicians have called for our assassination or life imprisonment. There are three bills before Congress and the Senate to do such things as declare us a “transnational threat”, so all our staff can be treated like al-Quada – as “enemy combatants” and shipped off to Bagram or Guantanamo, etc. Nothing Sweden can politely ask for can stop this legislative risk.

(From a live chat hosted in Sweden 2/24/20011.)

Other reactions:

And this may be useful: Julian Assange rape accusations: timeline.

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