Fair Trial for Julian Assange?

Contents

Criticism of Swedish justice system

Of all the signatories to the European Convention of Human Rights, Sweden has the highest per capita rate of cases brought to the European Court of Human Rights relating to article 6.1 (right to a fair trial). It also has the highest rate of adverse rulings when it comes to fair trial.

Fair trial as a ground for challenging the EAW - Feb 2011 Hearing

In the Feb 2011 Hearing, Julian Assange’s lawyers argued that the UK should not extradite him because he would not face a fair trial in Sweden. If extradited, Assange will be:

- Held in prison in solitary confinement when he is returned, despite not having been charged (likely to spend up to a year in custody). There is no time limit to detention in Sweden.

- Experts say that he will remain in pre-trial detention indefinitely.

- If there is a charge and a trial, it will be held in secret.

- He will not be judged by an ’independent and impartial tribunal’, a fundamental requirement under the European Convention of Human Rights (article 6.1). Three of the four judges are lay judges, who have been appointed by political parties and have no formal legal training (see Lay Judges).

- The Swedish prosecutor, Marianne Ny, has not given Julian Assange or his lawyers information on the allegations against him in writing, which violates the Swedish Code of Procedure (RB 23:18) and the European Convention of Human Rights (article 5), and the EU Fundamental Charter on Human Rights.

- There has been political interference with the Prime Minister’s statements to the Swedish Parliament during the trial (see Political Interference) and constant press attention has been given to the complainants’ lawyer (see Media climate in Sweden).

- The bilateral agreement between the United States and Sweden allows Julian Assange to be extradited to the US as soon as he arrives in Sweden (see section on US extradition). Under US custody, Julian Assange risks kidnapping, torture, and execution.

Reactions in Sweden to the criticism of the Swedish Justice System

- Prime Minister Fredrik Reinfeldt stated in a parliamentary address that criticism of the Swedish Justice system is unfounded, and Assange’s lawyers have tried to patronise Sweden (7 February 2011). The original statements are available here.

- In an anonymous survey, one out of three jurists agreed that Assange’s criticism of the Swedish Justice system is well-founded (English here, and here). The comments by Swedish lawyers reveal a profound lack of trust in the legal system:

"The Swedish judicial system is close to falling apart as far as sex crimes goes. Bizarre gender theories have had too much influence on practitioners of jurisprudence."

"Considering the pressure on Assange by the world at large, it’s not unrealistic to suspect there are things going on behind the scenes that have influenced how the case is being handled."

- The Swedish lawyers Jens Lapidus and Johan Åkermark published "Assange’s criticism is right on several counts" in one of the main Swedish dailies, DN (05 May 2011):

"We share Assange’s criticism about the rules of detention, the Lay Judges and the routine-like fashion in which trials are held behind closed doors."

- Claes Borgström, the lawyer for the two complainants in the Assange investigation, has also argued detention periods are excessively long in Sweden.

- Anne Ramberg, the chairperson of the Swedish Bar Association, said:

"Both the European Committee for the Prevention of Torture and other Inhumane and Degrading Treatment and the UN Committee Against Torture have criticised Sweden for long detention periods, and we agree that they can be incredibly long. We have also repeatedly through the years challenged trials behind closed doors. Because Lay Judges, but also on the grounds that it recruits from a limited pool of people rather than the politicisation of the courts."

Would a trial lead to Assange’s Conviction?

The testimonies of the two complainants (AA and SW), Julian Assange, and nine witnesses (English here) were leaked onto the internet in January 2011.

Swedish lawyers are divided on whether Assange would be convicted of the allegations against him.

Arguing that Assange would be found not guilty if charged:

Criminal justice professor Per-Ole Träskman (University of Lund Sweden) and doctoral researcher Sakari Melander (University of Helsinki) discussed the rape allegations against Assange in the Finnish daily newspaper Helsingin Sanomat. They argued that a conviction was unlikely:

* Träskman: "Based on the evidence available, it is unlikely Assange would be convicted of the suspected crimes. Also, the prosecutor has not yet raised charges. That means the prosecutor doesn’t think there’s sufficient reason to raise a charge at this stage. That’s why she wants Assange to be heard in Sweden relying on a European Arrest Warrant."

* Melander: "The success of a possible charge in court is not likely because reasonable doubt remains about Assange’s guilt. If there is unclarity about guilt, or there is no full certainty of it, the case must be resolved in favour of the accused."

The full transcript in English is available here.

Björn Hurtig, Assange’s defence counsel in Sweden, estimated that there was a 50% chance of conviction. However he argued the following in a letter to Assange’s UK defence counsel, Mark Stephens:

"Having studied the case file, as well as other material which I was permitted to inspect but not take copies or notes of (SMS/text messages from the complainants’ mobile phones), the case is one of the weakest cases I have ever seen in my professional career..."

"It is highly uncertain whether Mr. Assange will be prosecuted at all, if extradited. If prosecuted, I consider it highly unlikely that he will be convicted. If convicted, he would be likely, in light of the nature and detail of the allegations themselves (the lack of any threats or physical violence, the consensual sexual relations between the complainants and Mr. Assange before the incidents and, in the case of [AA] (her evidence on this point is contradictory) after the incidents, and his personal circumstances, to receive a suspended sentence."

Arguing that Assange is likely to be found guilty if charged:

- Per E. Samuelson, currently Assange’s lawyer in Sweden (together with Thomas Olsson) commented on the case before representing Assange. In the article he explained the uphill battle of proving his innocence in a system which has reversed the burden of proof (because the complainants’ words are taken to be more credible in the absence of evidence, according to the Supreme Court. Samuelsson was also quoted in an article on AOL.

* "People from other countries with different legal cultures just do not understand how extensive the Swedish legal system is regarding sexual crimes. The allegations made against Julian Assange in Sweden must seem to Assange as pure nonsense, as a joke. But he must understand that these are the kind of things for which men go to prison in Sweden."

"There was a discussion [about a law in sexual offences in 2007] but it has not changed. Political pressure which has the equality of women in society as starting point - which is in principle commendable - has led to an unacceptable very high legal uncertainty for defendants in Sweden. This is what Assange is experiencing right now. The feminist movement in Sweden is particularly strong. It has long been criticised by women’s rights activists that the judges would believe men more. It was said that it was impossible to get justice as a woman. Now the reverse is true in Sweden.

* "Today convictions are demanded due to a basic political tenor [a higher conviction rate was the stated purpose of Thomas Bodström (the partner in the law firm representing the two complainants against Assange, together with Claes Borgström) while he was Minister of Justice and promoting the reforms for the Sexual offences law]. The tenor: in rape cases, men have to be sentenced; otherwise it is unfair to women. This is unworthy of a constitutional state."

"In Sweden, the consensus is: you say the truth because you’re a woman. That is the limit for me. I am for the equality of women in society. Of course. But it cannot go so far that people who are innocent are convicted. In Sweden, the so-called victim’s perspective is so advanced that there are even people out there who believe in all seriousness that it is unacceptable that women in general are exposed to the rigours of an interrogation in court. People say we as trial lawyers would offend these women because we interrogate them on behalf of our clients. I think such a culture is unprecedented in Western Europe."

News

The Assange Case: A colossal miscarriage of justice in English and Swedish published in ’The Journalist’ online publication (Journalisten.se) 17 January 2012.

15 December 2011: Mårten Schultz writes that justice must not only be done, it must also be seen to be done. The article does not mention Julian Assange’s case by name, but the author, a civil law professor, has been critical of the disclosure of Assange’s identity to the media by the prosecutor on the same day of the police complaint.

"The police and the prosecutor have in principle unlimited opportunities to carry out their indictment through the media. The defence by contrast is often gagged." - Mårten Schultz, Dagens Nyheter, 15 December 2011

18 November 2011: William Butt: Julian Assange runs the risk of being wrongfully convicted (in Swedish)

1362 days under house arrest.

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