Feb 2011 Hearing

The February Hearing was held on 7, 8, 11 February 2011. The judgement was delivered on 24 February.

Grounds for challenging Assange’s arrest warrant

The arguments of the defence are summarised below. The original submission is available here.

1. The EAW is not valid

Marianne Ny does not have authority to issue the warrant and is not ’a judicial authority’:
- Marianne Ny is not "the Director of Public Prosecutions" as referred to by the prosecution.
- Whether she has authority to issue the warrant is a fundamental question going to the heart of the court’s jurisdiction in this case.
- There is lack of clarity as to who is the judicial authority in this case.

Expert opinion of Brita Sundberg-Weitman:

"In my opinion, the EAW has not been issued for prosecution but, strictly speaking, been issued for the purposes of enforcing the order for detention in absentia referred to at box (b) of the EAW. Therefore, the Swedish National Police Board was the only authority which could issue the EAW."

Witness statement by Björn Hurtig:

"I can confirm that Ms. Ny is not the Director of Public Prosecutions, as she is incorrectly described in the English version of the EAW (see page 5). The Swedish word to denote her title is överåklagare and in fact means ’Senior Prosecutor’ and she is one of a number of senior prosecutors. The Director of Public Prosecution in Sweden (i.e. the most senior Prosecutor in Sweden and the equivalent of the DPP in England, Keir Starmer) is the Riksåklagaren - the Prosecutor General - Mr. Anders Perklev."

Even if Ms. Ny were to technically fall under this category, Ms. Ny’s personal and professional investment in the Assange case (see Sundberg-Weitman’s comments about Ny under Gender Politics) would cast into doubt her suitability as a judicial authority. Although not further defined in the 2003 Extradition Act, a judicial authority can be defined as a person or body independently exercising judicial power. Ms. Ny could not be said to be independently exercising judicial power given that, as expert witness Sven-Erik Alhem (retired Chief District Prosecutor) explained:

"Ms. Ny is the person who both makes the decision to revive the rape investigation and then handles that investigation herself. It may still be considered that here, in a sense, she is ’judge in her own cause’ - having decided to reverse Ms Finné’s decision, she may be perceived as having an interest in deciding to charge Mr. Assange."

2. EAW sought for improper purpose: disproportionality and abuse of process

- The warrant has not been issued "for the purpose of being prosecuted ... for an offence", but merely for questioning.

  • Evidence emerged that Julian Assange was not wanted for prosecution in Sweden in the hearings on 7 and 8 February (see the Judgement, p. 15).
  • Marianne Ny made a late submission on 4 February explaining her position Judgement, p. 16).
  • Julian Assange’s defence counsel challenged the admissibility of Marianne Ny’s late submission, on grounds that it relates to disputed evidence and she should therefore have submitted herself to cross-examination (inter alia, see the Judgement, p. 11).
  • See Controversies: Prosecution

- The conduct by the Prosecutor Marianne Ny amounted to abuse.

  • There have already been abuses in Sweden that cannot be remedied: disclosure to the media, exclusion from appeal, non-disclosure of exculpatory evidence to the defendant, non-interrogation, political intervention. (These are explained in more detail in the Judgement, p. 24).
  • See Controversies: Investigation and Prosecution.

3. The offences described in the EAW are not extradition offences

Expert witness and Professor of English Law at the University of Oxford, Andrew Ashworth, provided an analysis on:

  • Double criminality - whether the offences described in the warrant would also be offences under English Law.
  • The prosecution’s argument that it is possible to infer Assange’s criminal intent (mens rea) from the complainants’ statements.
    - Ashworth found that on the evidence provided, Assange’s conduct would not amount to offences under UK law because there was no suggestion that the complainants did not consent and in all cases Assange may have reasonably believed that the women did not object to his conduct.
    - See Ashworth’s analysis of each of the four offences listed in the EAW, under Allegations.

4. Extraneous considerations

- The EAW has been issued for political purposes.

  • If extradited he may be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his political opinions.
  • See Political Interference and Gender Politics

5. Julian Assange will not face a fair trial in accordance with Article 6.1 of the European Court of Human Rights (ECHR)

  • Assange would be tried behind closed doors, which is contrary to the ECHR, Art. 47 of the European Charter of Fundamental Rights, and the UK’s fundamental constitutional principles.
  • Political interference by the Prime Minister of Sweden is calculated to encourage the Swedish media and legal officials to pursue Mr Assange’s guilt and to regard him as a public enemy.
  • If Julian Assange is extradited it is more than likely that he will be extradited to the United States where he risks being sent to Guantánamo Bay or executed as a traitor.
  • The extradition of Julian Assange would violate articles 3 (torture), 6 (fair trial), 8 (private and family life) and 10 (freedom of expression).
  • See Rule of Law and Fair Trial for Julian Assange?

The hearing: 7, 8, 11 February 2011

All the original submissions, except for Ferrada Noli’s late submission, are on the FSI website.

Expert Opinion: Andrew Ashworth

Andrew Ashworth, Professor of English Law at the University of Oxford, was an expert witness whose statement was not accepted by the court because it concerned English law. Geoffrey Robinson QC presented Ashworth’s opinions as his own submissions (p. 11 of the judgment).

Asworth’s expert opinion addressed:

Expert Opinion: Sven-Erik Alhem

Alhem is a lecturer at the University of Lund and a legal commentator. He retired in July 2008 after a legal career as a prosecutor, including serving as the Chief District Prosecutor in Stockholm and later as Director for the Regional Prosecution Authority in Stockholm.

Alhem’s expert opinion mainly addressed:

Witness: Göran Rudling

Rudling promotes law reform in relation to sexual offences. The current law does not offer enough protection to rape victims because it excludes the notion of consent, see Sexual Offences. Rudling is a witness because he discovered AA’s deleted Twitter messages (follow the Allegations), and conveyed his finding to the investigating authorities.

Rudling’s witness statement addressed:

Witness: Björn Hurtig

Hurtig is an experienced Swedish criminal trial lawyer and the defence counsel for Mr Julian Assange in relation to the criminal investigation against him in Sweden.

Hurtig’s witness statement mainly addressed:

The evidence (here and here) that he submitted also concerned:

(See the Judgement section for the judge’s comments on Hurtig’s statement.)

Witness: Marcello Ferrada-Noli

Ferrada-Noli’s witness statement was submitted on 22 February 2011, but it was not considered ’in open court’. The statement is based on empirical research of media coverage in Sweden about the Assange case.

Ferrada Noli’s statement addresses:

Witness Statement: Mark Stephens

Mark Stephens is Julian Assange’s solicitor, of the firm Finers Stephens Innocent. He submitted a witness statement detailing his dealings with the prosecutor and with his client. He states that Assange has always fully cooperated with the authorities, and explains his whereabouts in the weeks and months that preceded the arrest.

Mark Stephens witness statement mainly addresses:

Expert Opinion: Brita Sundberg-Weitman

Brita Sundberg-Weitman, a Swedish lawyer, a former judge, and a distinguished jurist, was one of four expert witnesses in the February hearing.

Brita Sundberg-Weitman’s expert opinion addressed:

Expert opinion: Christophe Brunski

Christophe Brunski is a translator and linguist.

His expert opinion mainly addressed:

The Judgement

assange-court-drawing

The district court judge delivered his Judgement on 24 February 2010. It referred to:

In his judgement (p. 10) Howard Riddle stated that Hurtig had deliberately misled the court with regards to prosecutor Marianne Ny’s willingness to interrogate Assange. This criticism led to Hurtig receiving a disciplinary warning by the Swedish Bar Association. The President of the Bar Association clarified that, despite the warning, the Bar Association believed that Hurtig had not deliberately misled the court. Hurtig’s (revised) evidence remains the best insight into the prosecutor’s conduct in November 2010 which led to The European Arrest Warrant and the INTERPOL Red Notice.

Problems with Riddle’s findings: Sundberg-Weitman

Brita Sundberg-Weitman challenged the judgement in the Swedish social media site Newsmill:

"[Translated from Swedish:] Riddle’s judgement can be challenged on several points: For example, he seems not to have understood that ’bail’ does not exist outside of the Common Law system, which he really should be aware of in a trial about surrender and extradition.

1. Presence of the defence counsel [Björn Hurtig] in the Court of Appeal:

Judge Riddle: "the witness at first appeared to say the defence were not represented in the Court of Appeal but later she said, after being referred to the decision of the court, that this document says Mr Hurtig was present, but she doesn’t think he was." (p.3 of the Judgement)

Brita Sundberg-Weitman’s response:

"It appears clearly from the protocol of Svea Court of Appeal that Hurtig was not present. There was no hearing in the Svea Court of Appeal. The case was presented by an official of the Court."

2. Bail:

Judge Riddle:

"She was asked direct questions as to whether the court would decide whether this defendant should be on bail, if returned to Sweden. At first she appeared to avoid the question but did say that this is a matter for the court, with a right to appeal if bail is refused." (Page 3 of the judgement)

Brita Sundberg-Weitman’s response:

"There is no bail option in the Swedish Code of Judicial Procedure, so I cannot have said that "this is a matter for the court" or that there is "a right to appeal if bail is refused".

3. Ms Ny’s idea of reasons to have a man locked up:

Judge Riddle:

"[Sundberg-Weitman] was taken through the early paragraphs and accepted that there was nothing really wrong with what was said there." (Page 3 of the judgement)

Brita Sundberg-Weitman’s response:

"I probably did not have enough presence of mind to answer the question properly. However, what is really wrong with Ms Ny’s statement - that a man ought to be detained in order to let the woman have the peace to consider whether or not she has been mistreated - is that this is not a legitimate reason to put a person in prison!" (Legitimate grounds: risk of absconding, risk of collusion, risk of continued criminality.)

4. Principle of proportionality:

Judge Riddle states that he is "not in a position to say what the reason was why Ms Ny rejected Mr Assange’s offers to be interrogated in England".

Brita Sundberg-Weitman’s response:

"Obviously because she has never divulged what her reason was! That is why I said that her refusal "looks malicious". It strikes me that whereas Judge Riddle is rash to draw the conclusion that it "cannot have slipped (Mr Hurtig’s) mind" what efforts he made to contact his client between 21st, 22nd and 29th September, Judge Riddle is content that Ms Ny has refused to state her reasons for issuing a EAW instead of accepting Mr Assange’s offers to be interrogated in England. As stated in the decision by the High Court in December, what Mr Assange did "is not the conduct of a person who is seeking to evade justice". When interviewed in the media Ms Ny has given the following reason for not accepting Mr Assange’s offer to be questioned in England: "It would not be consistent with Swedish law." This is simply not true. The principle of proportionality will lack all sense if you accept that a state authority is not under an obligation to divulge its reasons for limiting a person’s freedom!"

5. The basis of Sundberg-Weitman’s witness statement:

Judge Riddle:

"One might have expected a clearer statement in [Sundberg-Weitman’s] report that some of her evidence was based on what she had been told by defence lawyers, as opposed to independent sources, although she readily revealed that in cross-examination. (Page 4 of the judgement)

Brita Sundberg-Weitman’s response:

"It is not true that I based my conclusions on what I had been told by defence lawyers. Ms Nye (sic) has herself confirmed that she could have interrogated Mr Assange whilst he was still in Sweden. Her motivation for not doing so was that she wanted to interrogate all the witnesses before she heard Mr Assange’s side of the story. In my view this delay was unreasonable, since Mr Assange was only temporarily in Sweden. However, since she did not question him before he left Sweden, she should in my view have accepted his offer to be interrogated in England.

Under the Code of Judicial Procedure "(t)he investigation should be conducted so that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience." (Chapter 23 Section 4). Issuing a EAW was bound to cause Mr Assange and his work a maximum of harm, as could easily (sic) be predicted."

1378 days under house arrest.

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