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Jan 12, 2011

Assange legal team's skeleton argument on strong ground

Julian Assange’s legal team is on very strong ground and English courts have in recent years repeatedly shown a robustness that the political class of that country lacks when it comes to human rights.

Julian Assange’s lawyers are going for the jugular in their attack on the Swedish and UK government’s attempts to extradite Assange to Sweden where there is an investigation under way concerning his alleged in involvement in sexual offences. Not only do Assange’s lawyers run the usual arguments about the offences not being extradition offences — that is, there are no like charges in English law — but they say that the Swedish prosecutor who wants Assange extradited has no authority to do so, and that the whole thing is an abuse of process.

Strong stuff, but if the 35-page skeleton argument that Assange’s legal team has filed overnight with the City of Westminster Magistrates Court, ahead of the hearing in early February, is correct in its view of the law, then the Swedes are cactus! (See video here of Assange’s brief appearance at Belmarsh Magistrates’ court in London overnight.)

The Swedish prosecutor who is handling the Assange sex offences matter, Marianne Ny, a Public Prosecutor in Gothenburg, has no power to seek extradition, say Assange’s lawyers.  The submission cites media statements by Ny and correspondence she had with the Australian High Commission in London in December in which she made it clear that her “purpose in requesting an arrest warrant, and subsequently an [extradition warrant], against Assange, was not in order to prosecute him, but in order to facilitate his ‘interrogation’, i.e. to facilitate his questioning.”

Assange’s lawyers correctly cite a line of strong and unambiguous English and European legal authority that says that you cannot extradite a person merely to question them. And you certainly cannot do so when there is documented evidence, as there is in this case, that Assange’s lawyers have repeatedly told the Swedish authorities that Assange was more than happy to meet them for questioning.

As to Ny’s argument that there was no other way of her getting Assange into the Gothenburg interviewing room, Assange’s lawyers say this is false.

What also emerges from Assange’s lawyers’ submission is that Ny has not complied with the cardinal principle of full disclosure — in other words, an accused person is entitled to see all the evidence against him. In the Assange case, much has been made of text messages said to have been sent by the women Assange is said to have slept with, including one where one of the women says she was half asleep. Other “messages from and between the complainants that the Swedish Prosecutor has refused to disclose but which Assange’s lawyer, (Bjorn) Hurtig, has seen (but was not allowed by the prosecutor to take notes or copies of), speak of revenge and of the opportunity to make lots of money and of going to the Swedish national newspaper, Expressen,” says the submission.

In short, Assange’s lawyers must be provided with copies of such potentially useful evidence before matters go any further.

By refusing Assange’s legal team access to the text messages, Ny is caught on the horns of a painful dilemma, argue Assange’s lawyers. And they are right.

In perhaps the most damaging portion of the submission, Ny is accused of abuse of process because either “Assange’s extradition is sought for purposes of prosecution, and thus a decision has been taken as to his prosecution and he is then entitled under Swedish law to disclosure of the entire investigation file, including the SMS messages and blog evidence — and yet these crucial items of evidence have not been disclosed to him, representing a serious violation of Swedish criminal procedure law and dereliction of duty on the part of  Ny, and thus an abuse of process”, or “Mr Assange’s extradition is not being sought for the purposes of prosecution, in which case it should not have been sought at all. Either way, it is an abuse of process for Ms Ny to proceed in the way in which she is doing.”

The final argument raised by Assange’s lawyers, and one that should be supported by the Gillard government (but don’t hold your breath) is that if Assange is extradited, compliant Swedish authorities will allow the Americans to swoop on Assange and dump him in Guantanamo Bay or some other place of torture. This is a genuine threat given the extremist nature of the American political and legal responses to Assange so far and because of the pressure on President Obama to tack to the hard right on the issue.

Julian Assange’s legal team is on very strong ground and English courts have in recent years repeatedly shown a robustness that the political class of that country lacks when it comes to human rights. It would be a surprise if Assange were handed to the likes of Ny and the Americans, given that to do so would be to hand him over to a political and diplomatic witch-hunt in Sweden and the US.

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39 comments

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39 thoughts on “Assange legal team’s skeleton argument on strong ground

  1. kennethrobinson2

    Whats with the Swedes, up until now I have been proud of my one eighth Swedish blood, from the way this case is proceeding, it looks like they are a pack of idiots, or worse seeking to please their US masters, just like our heroic PM.
    If this was just a plain sexual assault crime I would say, go and have your day in court, but with treachery afoot, he doesn’t have a chance, lets see how good the British justice system is.

  2. Gavin Moodie

    Why might it be easier for the US to extradite Assange from Sweden than from the UK?

  3. shepherdmarilyn

    Because the Brits have had to pay out millions in compo. for rendered citizens tortured in Gitmo and Assange has not been charged with anything in England.

    Actually it’s sort of the same as all the poor devils locked up in Gitmo for years on end after rendering and torture.

    It simply is not possible to render people for questioning.

  4. Meski

    If the Americans want to try him, then they should do it in the US, not Gitmo. Not that I think they should. And they shouldn’t use this pretense of a rape trial to get him.

  5. Liz45

    @GAVIN – I’d have thought that the answer to that question is glaringly obvious. The Swedes are really behaving in a most unprofessional manner, which indicates to me, that this action in the Courts is just a ‘cover’ for their main agenda – to hand Julian Assange over to the US. I’d like to think, that the British system of justice is superior.

    I recall the actions of the British legal system re those who were languishing in Guantanamo Bay – they insisted on their being sent home. I also recall the case of ?Beck, who was another British citizen jailed by the US in Guantanamo Bay. I read his story, and it was his father’s consistent actions that brought justice in his instance.

    The fact that Assange has always shown a willingness to speak to the legal people in Sweden; the fact that they dropped the first lot of charges; the fact that they weren’t overly concerned with him leaving the country in the first instance, coupled with the fact, that it was when the US started to use harsh rhetoric about the Wikileaks articles, which clearly showed their contempt for their own people and the rest of us, was when the Swedes became ‘interested’ in the alleged sexual offences. Even the most conservative person would begin to smell a rat – or an intended rendition?

    I can’t wait for the next disclosure. A US bank? The co-operation of US pollies in its activities, and some of the info of the Howard/Blair/Bush behaviours? Bring it on I say!

  6. Gavin Moodie

    I’m sorry for being slow, but it is still not obvious to me why it would be easier for the US to extradite someone from Sweden than from the UK. They are both members of the European Union which I thought had a law on extradition that applies to all members.

  7. SusieQ

    Gavin, must admit I’m with you a bit on this. Marilyn may have partly answered the question, although I’m not sure if it is complicated by Assange being an Australian citizen? The Brits have been happy to let UK citizens be extradited to other EU countries in the past few years even where the evidence is dodgy. A computer hacker has (or will be soon) been extradited to the USA from the UK too, so they do have form in this.

    And I agree with the author – lets not hold our breath waiting for any support from Gillard et al – they’ve sat back and let American politicians and commentators talk about execution, hunting down etc and not said a word!

  8. Scott

    I think these arguments are rubbish.

    It’s an extradition hearing. Therefore the only law that really matters is the Extradition Act (2003).

    There are reasons to refuse extradition in the Act, but the arguments listed here do not apply. It doesn’t matter that the offences are not offences under UK law. As long as they are in the list of offences in the European Framework that is enough.

    It also doesn’t matter why the European Arrest Warrant was issued. As long as it is valid and issued by the appropriate judicial authority, it is fine. In fact, the Warrant has been challenged in Sweden itself and was turned down by a court of appeal and with the high court refusing to hear the case.

    The full disclosure argument is also a red herring. The prosecution will argue, successfully, that this will happen once the brief is presented to a Swedish judge.

    As for the US extradition threat, that is pure speculation at the moment and will be thrown out.

    The only real argument that might work is that the charges are politically motivated (as that is grounds for the extradition request to be denied in the act). But hard to prove when the country is Sweden, not know for it’s political oppression.

    I think Assange will end up in Stockholm soon enough. Then the trial will really begin.

  9. Bkouki

    Scott
    U said”It also doesn’t matter why the European Arrest Warrant was issued. As long as it is valid and issued by the appropriate judicial authority, it is fine. In fact, the Warrant has been challenged in Sweden itself and was turned down by a court of appeal and with the high court refusing to hear the case.”
    The Swedish prosecutor who issued an arrest warrant for Assange did not have the power to do so.
    This will be base around who can issue these warrants and if there r named authorities in the extradition act. The English court is NOT under The Swedish court and can make its own judgement
    U also said”It’s an extradition hearing. Therefore the only law that really matters is the Extradition Act (2003). ”
    Sorry, but the UK has been sued and paid out big settlements for using that reasoning in Gitmo cases. The EU human rights MUST be followed.
    I further say the USG threat is VERY real and must be taken into account.
    There is a secret grand jury hearing going on now, which has just been exposed by Twitter.
    Tnx Twitter for ur courage.
    He is an Australia journalist/publisher/citizen, that released information in another country. He never did this in the US. He does not vote in the US. How can he have a trial by his peers?
    He is has freedom of speech under the UN human rights Article 19:
    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
    Repeat after me “Everyone has the right ” “to seek, receive and impart information and ideas through any media and regardless of frontiers.”
    Repeat”any media”
    The US, Aus, the UK and Sweden signed but….
    Yet those in power r threatening his death…..
    Who will be next? Can an American be extradited for insulting Muhummed? It is considered an attack on the state, in some countries.

  10. shepherdmarilyn

    Gee Scott, so you think people should be rendered up based on no charges just because a government feels like it?

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