Thursday, August 16, 2012

A questionable charge

(An occasional blog by an occasional blogger.)

Twitter is alive with the assertion that Julian Assange is wanted by Sweden for "questioning" and has not been "charged". In addition we are told that Assange offered to be questioned in London and that Sweden's rejected of this offer is "suspicious".

It is not unusual in media coverage of extradition cases for differences between common law and civil law legal systems to be forgotten. In reality Julian Assange is not wanted for questioning, certainly not in the way as this expression is used in common law legal procedure, ie a police interview.

European Arrest Warrants may only be issued for the purposed of conducting a criminal prosecution not merely an investigation. In Sweden in order to charge an individual with a criminal offence, the investigated person must be brought before a magistrate to be formally interrogated. The person must be present. The evidence is put to him and he is given a opportunity to reply. This is not a police interview. The investigated person has the right to be legally represented. It is only after this procedure takes place that formal charges can be preferred. If charges are preferred a trial follows shortly afterwards.

In Ireland this element of Swedish criminal procedure was described by the President of the High Court in Minister for Justice v. Ollsen as:
"The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences." [2008] IEHC 37, page 17. (The decision was upheld on appeal.)
Almost needless to say, the English courts examined Assange's contention that he was being sought for questioning and not prosecution, and rejected it. In the High Court the judges ruled that:
"Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange." [2011] EWHC 2849 (Admin), para 153.
Thus Assange's offer to allow himself to be interviewed by the Swedish prosecutors in London was disingenuous. The case against him has progressed to an advanced stage and his presence in Sweden is required. This is after all why Sweden requested his surrender.

1 comment:

  1. Thanks for clarificaion of this part of swedesh civil legal system. What you forgot the tell is that this system puts men to jail, BEFORE they have been charged, even in those cases, when the evidence of any crime is aboslutely thin or a pure nonsense.
    Lets not forget that Mr. Assange WAS present in Sweden long enough to "be brought before a magistrate to be formally interrogated". He was interrogated by the police btw, in person:,04.shtml
    He has even got approval from the prosecutor to leave Sweden!
    And the claim of Mr. Assannge's supportes is true: there are NO charges against him. That Sweden very much wants to prosecute him, is obvious. It is also VERY peculiar that an english court was rather ready to look at a case "through cosmopolitan eyes", GROSSLY disrespecting the obvious MISUSE of the EAW and interpol-system. Issuing a RED interpol notice in Assange's case can ONLY by linked to US pressure and Cablegate. Therefore, the whole misuse of the swedish and english legal system can be pinned down to the latter: Cablegate, Iraq and Afganistan War Logs and the very important activity of Wikileaks disclosing state terrorism.