måndag, augusti 20, 2012

Extradition of Assange to the US via Sweden for espionage

Many journalists have contacted me on the issue whether Julian Assange can be extradited to the US via Sweden for espionage where he might face the death penalty. The short answer is: no. Below you will find the long answer.

How does procedure work if somebody is to extradited from Sweden? Pursuant to section 14 of the extradition of criminal offences act a "request for extradition shall be made in writing. It may be transmitted by telefax or, subject to agreement in the individual case, by other means. The request shall be made to the Ministry of Justice." The request shall according to section 15 of the same act be rejected immediately if there is a manifest reason why it should not be granted. Otherwise, the request is forwarded to the office of the Prosecutor-General who shall deliver a statement of opinion on the matter. In addition, if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. Section 20(1) provides that if the Supreme Court has considered that there is a legal obstacle to extradition the request may not be granted. Even if the Supreme court has found that there are no obstacles, the Government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person "may" not "shall" be extradited. In other words, even if the Prosecutor-General and the Supreme Court finds that all conditions for extradition are fulfilled the Government may veto such extradition. It does not work in the reverse way, the Government can not grant extradition if the Supreme Court has found that any of the required conditions are lacking.

As I understand, Assange wants the Swedish Government to guarantee that it will not grant extradition to the US. The US has not made any request to the Sweden on this matter. In other words, Assange wants the Swedish Government to pledge to use its veto power in relation to a non-existing request and before the Prosecutor-General and the Supreme Court has evaluated this non-existing request. There is nothing in the extradition of criminal offences act that deals with this scenario, but it would depart from established practice. Cameron and et. al write in a general way about this in their book "International Criminal Law from a Swedish Perspective", Intersentia, 2011, p. 171.

Assange fears that he will be extradited to the US where he may be at danger of being for torture or receiving the death penalty. There are at least three obstacles that makes it difficult or even impossible to extradite Assange to the US.

First, Sweden (as the UK) is party to the European Convention of Human Rights. The convention has been incorporated in Swedish law which makes it directly applicable for all state agencies, courts and the Government. Following the Soering Case, Sweden (and the UK) are prohibited from extraditing a person who may face the death penalty. Subject to are obligations from European Convention of Human and the Convention against Torture there is also a prohibition from extraditing somebody where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (which includes inhuman or degrading treatment or punishment).

Second, pursuant to article 28(4) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States "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." Cameron and et. al write the following on p. 191: "It can be noted here, in connection with the EAW proceedings in 2010 concerning 'Wikileaks' founder Julian Assange, that the principle of speciality means that Assange cannot be extradited or deported from Sweden, unless the UK grants its permission for this." This means that the present decision from British authorities, upheld by Supreme Court, to extradite Assange to Sweden for sexuually related crimes is not enough. If the US would request Sweden to extradite Assange the issue not only have to be approved by the Prosecutor-General, Supreme Court and Government in Sweden, it also has to go through the British legal system a second time (which took more than 500 days the first time). In other words, if the US wants Assange extradited from Sweden he will have the protection of both the Swedish and British legal systems. It would appear easier to have him extradited directly from the UK.

Third, the Swedish extradition agreements with the US does not allow extradition when the offence is purely military or if the offence is a political offence. See article 5(4)-(5) of Convention on extradition between the United States of America and Sweden, 24 October 1961. See also the supplementary convention from 14 March 1983. Cameron and et. al write the following on p. 177: "No definition is given in the Extradition Act of what offence constitute a political offence. In Swedish extradition law, as in many other countries' extradition laws, a distinction is made between absolute and relative political crimes. Absolute political crimes are those exclusively directed against the state... espionage is an absolute political crime according to the travaux préparatoires". One may add that in Swedish law, as opposed to English law, travaux préparatoires is as source of law.

As I understand Ecuador has granted Assange political asylum, i.e. Ecuador is arguing that the US is seeking Assange for a political offence (espionage). Moreover, they fear that Assange will be subject to the death penalty and/or torture. As explained above, extradition from Sweden would for several reasons not be granted in such a case.

It is theoretically possible that i) the US might charge Assange for an other (non-political) crime than espionage and that ii) the US would be willing to issue a guarantee that the death penalty will not be issued. The latter has happened before - see for example the aftermath of the Soering case. Could Sweden extradite Assange in such a case? The answer is yes provided that the UK also approves, but I have great difficulties to see what kind of non-political crime that would be. We can of course discuss all kind of theoretical cases which I do all the time with my students at the University. The question is if sovereign states such as the UK, Sweden and Ecuador should take action on such theoretical cases, regardless of their likelihood and basis in reality?

Update 1. Pål Wrange has written two excellent blog posts in Swedish on, inter alia, the “temporary surrender”-procedure in the Swedish-US extradition treaty which has caught some attention. Some argue that it can be used to circumvent all the requirements that I describe above. Wrange makes two conclusions that are notable. First, the "temporary surrender" procedure has to fulfil the same conditions as the regular surrender procedure. Second, the same "temporary surrender"-procedure exists in article 14 of the British-US extradition treaty.

Update 2. Above I write that Assange "will have the protection of both the Swedish and British legal systems" if there is a extradition request from the US. In the comments to this blog post there is a discussion whether this includes an additional judicial review in British courts. As I understand an additional decision  to extradite  a person to a third country (the US) following a surrender under the EAW is taken by the UK Home Secretary. There is nothing in UK law which explicitly state that this decision is subject to judicial review. Therefore I would like to adjust my statement above. It would have been more accurate to state that any extradition request from the US have to be approved by both the UK and Sweden. As explained above, the Swedish Supreme Court needs to approve such requests while the precise procedure in the UK is unknown for me.

76 kommentarer:

Oscar Swartz sa...

Great to see an expert commenting on this. I wonder during what period (or what circumstances) the permission from the UK is needed. I guess it cannot be valid for eternity?

Let us say that Assange is interrogated and the case is closed and he walks free. Then the case for which he was extradited from the UK is over. Is the permission from the UK still needed? Or if there is a trial and he is sentenced to some short sentence. What happens when he walks out on Swedish ground as a free man? (I have heard something about a 45 day "curfew" during which a UK permission would be needed but has seen no reference to the legal ground for this).

Also, in the famous case of Egyptians picked up by the U.S. in Sweden: Were these procedures followed? I guess not?

Mark Klamberg sa...

The 45 curfew you may find in section 12(1) of the Extradition of criminal offences act.

This means that if Assange is convicted for sexual crimes and after the sentence has been served stays in Sweden as a free man longer than 45 days - in such a case Sweden may extradite without the approval from the UK.

None of the procedures were followed in the case of the two Egyptians. It was dealt entirely outside the legal system. The Assange case has until now been dealt within the legal system which makes it different from the case with the two Egyptians.

avajadi sa...

So what guarantees do we have thet the swedish authorities won't simply send him abroad with US agents in exactly the same way as with the mentioned egyptians? As far as I know, nobody has been prosecuted for the handling of their case...

Ivan sa...

Thank you for a highly interesting piece.

Foreign Minister Carl Bildt is on record claiming that Sweden cannot offer assurances to Assange, since any such guarantee would be in breach of our constitution.

In your words however, it would be a "departure from established practice", but as far as I can tell you do not rule it out on legal grounds.

Whose analysis is correct, yours or Bildt's?

Mark Klamberg sa...

Avajadi,
There are good reasones wgy that will not be repeated.

In relation to the repatriation of the two Egyptians, the UN Committe against torture issued a decision where it established that Sweden as a state had violated its obligations under the torture convention.

The Constitution committe of the parliament (Konstitutionsutskottet) found that the Government had violated Swedish law.

The Swedish state compensated both of the men with 3 000 000 SEK (350 000 Euros) each. At least one of them was granted permanent residence in Sweden (which he applied for).

Even democratic, rule-of-law states with a good human rights record may commit mistakes. The difference compared with authoritarian states is that democratic, rule-of-law states takes action to repair the mistake and prevent it from happening again. That is what Sweden has done in relation to the case with the two Egyptians.

The responsible minister Anna Lindh who approved the decision to hand over the Egyptians was murdered 11 september 2003. The story on the Egyptians became known 17 May 2004, i.e. after her death. That is the explanation why there were no concequenses for the responsible minister.

Anonym sa...

*If* Julian Assange ever returns to Sweden, faces questioning, is charged, serves a sentence - he is more than likely to be deported to his own country, Australia. Australia has legal mechanisms in place to ensure it's citizens are not extradited to any country that may impose a death penalty, and guarantees are put in place to ensure this.

Mark Klamberg sa...

Ivan,
"Established practice" is not statutory law but it may still be law. There is no major difference between my assesment on this particular issue and the statement of FM Bildt.

Anonym sa...

Remember the egyptian case and extralegal rendition? The Swedes got a worthless paper before the kidnapping that the egyptians would not be tortured. That was sufficient for them to allow foreign intelligence operate on swedish soil, kidnapping, binding, drugging and then flee with the help of swedish police and custom agents the country with a known CIA plane to Egypt for torture. The Swedes eventually lost the case. That is how easy it is to cripple int'l and human right laws as long as there is a will, i.e. a worthless bit of paper with some worthless scribble on it.

Anonym sa...

"The answer is yes provided that the UK also approves, but I have great difficulties to see what kind of non-political crime that would be."

Have you any idea of what charges the grand jury empanelled in Virginia are preparing against Assange right now? Or what charges are made in the secret indictment against Assange mentioned in one of the emails that surfaced after Stratfor was hacked?

One of many allegations seems to be that Assange provided Bradley Manning with tools needed for hacking into various systems. In Sweden I believe we call that "dataintrång". Would that be a political offense?

And, if all else fails, why not just have him extradited on rape charges? Experience proves it's not that difficult to concoct something like that.

Finally, whatever the legal position, it seems pretty clear the U.S. are planning to lay their hands on Assange after the Swedish justice system is done with him. See the following article in The Independent:

http://www.independent.co.uk/news/uk/crime/assange-could-face-espionage-trial-in-us-2154107.html

Ivan sa...

"If the US would request Sweden to extradite Assange the issue not only have to be approved by the Prosecutor-General, Supreme Court and Government in Sweden, it also has to go through the British legal system a second time (which took more than 500 days the first time). In other words, if the US wants Assange extradited from Sweden he will have the protection of both the Swedish and British legal systems."

Do you have any information to back up this claim? It is contrary to analyses published elsewhere, e.g. the UK Supreme Court Blog:

http://ukscblog.com/the-week-that-was-56

Section 58 of the Extradition Act 2003 appears to give the Secretary of State (in this case Home Secretary Theresa May) the power to approve onwards extradition without the need to go through the courts.

http://www.legislation.gov.uk/ukpga/2003/41/section/58

Mark Klamberg sa...

It is clear that an additional decision is needed from the UK. If this decision is appealable or not you have to ask an English lawyer.

Nicholas sa...

Thanks Mark - It's great to have an expert Swedish analysis on this crucial legal issue.

I have one question. Could you clarify how the "Temporary Surrender" agreement between the US and Sweden fits into all this? As I understand it can be used to overide Swedish law on extradition. Could it therefore be used by the US in the Assange case to facilitate a speedy extradition?

JohJoh sa...

"The answer is yes provided that the UK also approves, but I have great difficulties to see what kind of non-political crime that would be."

Maybe that can claim violation of copyright on the secret documents
;o

Ivan sa...

"It is clear that an additional decision is needed from the UK. If this decision is appealable or not you have to ask an English lawyer."

Thank you for your clarification. So your assertion - that Assange would "have the protection of both the Swedish and British legal systems" - is based on little more than a guess? Will you update your blog post to reflect this fact?

JohJoh sa...

Mark
"It would appear easier to have him extradited directly from the UK. "

Wouldn't that be an extraordinary thing to do!? If UK would deliver him to US when Sweden already have asked for him...

Sounds like something that would be a big strain on the Sweden-UK relations if that happended!?

Rana elegans sa...

"It is clear that an additional decision is needed from the UK. If this decision is appealable or not you have to ask an English lawyer."

If the decision turns out to be non-appealable, then it might well be easier to have him extradited from Sweden, despite the need for agreement between Eweden and England. For an extradiction directly from England is plausibly more demanding (cf. the 500 days).

Mats Engström sa...

Mark,

On what grounds do you claim that Anna Lindh "approved the decision to hand over the Egyptians"? Nobody involved has claimed that in the subsequent enquires into the case.

Mats Engström

Mark Klamberg sa...
Den här kommentaren har tagits bort av skribenten.
Anonym sa...

Mark,

Are you aware that the FM Bildt referred to the independence of the Swedish courts when he claimed that it was impossible to offer Mr Assange a guarantee not to be extradited onward to the US (because such a guarantee would curtail such independence)? He also ridiculed south american countries for not understanding this.

With that information I think it would be intellectually dishonest to say there is no difference in your analysis. Yours is correct as far as I can tell and FM Bildt is on thin ice indeed.

Best regards,

Björn

Mats Engström sa...


Mark,

Thanks for your reply. I have great respect for your knowledge in law. Please read the relevant documents in the enquiries, for example from the Swedish police itself taking responsibility for what happened with the CIA flight.
A legal enquiry was started against the Swedish police but abandoned by the prosecutor.

Mats

Anonym sa...

Interesting and informative post. One other question that i would like to see some comments from an expert about is "Why can't we interrogate Assange in U.K/embassy.", as Dick Sundevall says here http://www.magasinetparagraf.se/debatt/hog-tid-att-forhora-assange. Are there any strong legal reasons that we don't?

A bit off-topic from you mainpost, but still..

Mark Klamberg sa...

Dear Mats, I deleted my previous comment. I based my statement on Anna Lindh and the event on the writings and research of journalists.

My intent was not to taint the memory of a person who died a tragic death.

You probably have more knowledge on the matter and I dont want to challenge that.

Mark Klamberg sa...

Nicholas,
I actually discussed temporary extradition with my colleague Pål Wrange this morning.

Temporary extradition is provided for in article 6 of the 1983 supplementary treaty on extradition.

Our conclusion (and as I understand all other experts on the matter) is that the speciality rule in article 28(4) of the Framework Decision on the European arrest warrant has precedence before the rules on temporary extradition. This means that the UK must approve that Assange is transfered to the US. Why? There are many reasons that support this. First, the 1983 supplemental treaty does not adress the situation when a person is transferred from country A (the UK) to country B (Sweden) and thereafter is subject to a request from country C (US). Second, procedures set up pursuant to EU law tend to take precedence over national procedures. Finally, the EU framework decision was adopted after the 1983 treaty and according to the lex posterior principle it has precendence.

Moreover, the rules that prohibit extradition 1) for political offences and 2) when there is a risk for torture/death penalty still apply.

Olof sa...

Considering that nobody has actually been held responsible for the Egyptian case I have a very hard time seeing how you can claim that Sweden has actually learned anything or taken action to ensure it doesn't happen again.

What do you expect would happen were Assange put on a plane for extraordinary rendition?

I would expect some angry people, a couple of clashes between police and protesters, leading to some protesters getting put in jail, followed by...

... absolutely nothing. Any Swedish prosecutor would drop any case against police, security personnel or politicians and that would be that. Maybe some whining from Konstitutionsutskottet and international organizations, but absolutely nobody would be held accountable. Again.

Sweden has learned nothing.

Mark Klamberg sa...

Anonym,
Legally it is possible to interrogate Assange in London, it has happened in other cases that the police goes to other countries. However, normally when cases are to be tried by Swedish authorities and in a Swedish courts interrogations are held in Sweden. The prosecutor normally wants to interrogate the suspect several times and cross-check the answer with witnesses/victims.

In this particular case I get the impression that there is a struggle on the control over the investigation. Assange appears to want to set the conditions for the investigation and thus control the investigation. He may grant one interrogation but say to additional interrogations. Police and prosecutor dont like that, they want to be in control, that is how the rules concerning criminal investigations are set up.

Mark Klamberg sa...

Ivan,
I have checked your question with a legal scholar in the UK and here is the answer I got.

The Crown Prosecution Service and Home Office guidance sets out the procedure here:
https://www.cps.gov.uk/news/fact_sheets/extradition/ and here:
http://www.homeoffice.gov.uk/police/extradition-intro11/extrad-part-2/

"The Extradition Act gives both the wanted person and the requesting state a right of appeal against the decision of the district judge, or the Secretary of State. Appeals are to the High Court with timeframes set out in the Act. It is also possible to appeal to the Supreme Court but as with category 1 territories [European Union] this is only possible if the High Court certifies that the appeal involves a point of law of general public importance, and either the High Court or the Supreme Court gives leave for the appeal to be made."

Mark Klamberg sa...

Ivan,
Here is an editorial in the Independent which explains it in a more eloquent way.

Unknown sa...

So you didn't even know about the temporary extradition process. What an expert you are.

Johan Tjäder sa...

If convicted, Assange could apply for a transfer to an Australian prison according to the Convention on the Transfer of Sentenced Persons. If he wants that...

Olof sa...

Mark,

Are there any actual legal reasons why 1991:572 would not be applicable the second Assange sets foot in Sweden? The only caveat against immediate delivery still seems to be death-or-torture exception which is easily dealt with by a diplomatic 'guarantee' (which we have no way of enforcing and we can assume will be ignored anyway, but will still be valid).

I really can't see that anything has changed to prevent it from being used, I can't even see a theoretical legal reason why it couldn't be used.

Johan Tjäder sa...

Not actually. As it has been explained here, the prosecutor general and the supreme court should handle such a case before it becomes a matter before the government. So any statement whatsoever from the government might taint the legal process that is to take place before the political decision is made.

And the constitution prohibits the government from instructing a court or an official how to decide in a particular case.

Johan Tjäder sa...

You can't claim copyright on works that are not published.

Ivan sa...

Mark: Thank you for the information, and for the link to the sneering blog post.

If Assange were to appeal a Home Secretary decision to waive speciality, would the Swedish government then be legally bound to halt extradition until his case has been heard in court?

Johan Tjäder sa...

The Act Concerning Special Controls in Respect of Aliens (1991:572) would come into play if Assange were to come here when he's not arrested and if it could be shown that Assange is a threat to Swedish national security or that he is planning to commit acts of terrorism. Then he could be sent away.

As it stands know, Assange is wanted for arrest. That means Swedish authorities wants him here.

Johan Tjäder sa...

I agree that espionage is a political crime and therefore it cannot be that someone is extradited for the crime of espionage. But I feel it necessary to point out that the act of Espionage against the United States is not a crime in Sweden. It is illegal in Sweden to spy on the United States on behalf of some other government. That is called unlawful intelligence activities. However in the cable-gate case it would be hard to argue that any of the activities leading up to the publication of documents were tied to Sweden in some way.

Mark Klamberg sa...

Ivan, yes.

JohJoh sa...

MArk, sorry if I repeat myself. But a very common argument is (in your words):
"It would appear easier to have him extradited directly from the UK. "

Can you comment on this?
Since Sweden have asked for him, is it a valid argument at all? Could really UK send him to US in spite of the pending swedish request? Is it not true that US must await the outcome of the swedish handling before thay make any move/request against JA?

Anonym sa...

Vet inte om du horde att pa BBC Newsnight igar namde Craig Murray namnet pa en av tjejerna A..A.. tyvarr sa var det inte Paxman som genomforde intervjun han ar bra pa att satta lite press.
"Under UK law, rape victims are guaranteed lifetime anonymity but neither Mr Murray nor the BBC committed any offence because the alleged victim lives in Sweden.
Under UK law, rape victims are guaranteed lifetime anonymity but neither Mr Murray nor the BBC committed any offence because the alleged victim lives in Sweden." Metro


Sen har G Galloway sagt ngt.

Olof sa...

Johan Tjäder,

I can't find any paragraph in 1991:572 that specifies that it cannot be applied to a person under arrest. Can you elaborate why it couldn't?

Note also that the law does not require the subject to be a threat to national security, it only requires there to be a threat to national security. Which can include anything from increased risks for current military operations to threats against economic interests such as threats of trade sanctions.

Mark Klamberg sa...

JohJoh,
I have heard the same argument from several others and it is a very interesting argument.

If the argument is correct, it would mean that the Swedish request under EAW and proceedings concerning alleged sexual crime actually works as a shield both in Sweden and the UK against any US efforts to have him extradited to the US for espionage. Why? The UK cannot extradite him because there is an EAW. If Assange is extradited to Sweden for allegations of sexual crimes, Assange cannot due to the EAW be sent to the US unless the request is approved both in the UK and Sweden (which is difficult as described in my blog post).

Nicholas sa...

Thanks for the sharing these conclusions Mark.

I have two further questions based on your thoughts if you can help:

1)If I understand correctly, it seems what you are saying is that EU law would basically overide the 1984 "temporary surrender" agreement between Sweden and the US. However, it appears that the temporary surrender agreement was unofficially enshrined into EU law as of February 2010 in the EU-US Extradition and Mutual Legal Assistance agreements. It can be found in the Council of the EU handbook in the link below on Page 15, Article 9:

http://www.statewatch.org/news/2011/mar/eu-council-eu-usa-mla-handbook-8024-11.pdf

"(Temporary surrender) facilitates the orderly and efficient prosecution of a person sought in two jurisdictions by allowing the temporary transfer of the person to the Requesting State for prosecution, when that person is subject to proceedings (either prosecution or service of a sentence) in the Requested State. The transfer is subject to conditions agreed to in advance of the transfer." - Council of the European Union.

However, it does say at the beginning of the document that: "Whilst such Handbook does not have authoritative force, the Presidency is of the opinion that it might nevertheless be a useful tool for practitioners in understanding the EU-U.S. Agreements".

Is this a legal ruling and if not, should Assange's legal team be concerned about it?

2) Could the US pursue a non-political extradition charge instead for Assange - such as computer hacking or assisting Bradley Manning with technological know how?

Mark Klamberg sa...

Nicholas,
1. "Temporary surrender" should not be interpreted as "immediate surrender without legal protection" as some people appear to interpret it. The purpose of "temporary surrender" which exists in the Swedish as well as the British agreement with the US is to temporarliy surrender a person to an other state and after the proceedings in the requesting state has been finished the person will return to the requested state (Sweden or UK). The difference between "temporary surrender" and "normal surrender" is that with the latter procedure the person will not return to the requested state (Sweden or UK). In all other regards, the same conditions apply, i.e. no extradition for political crime and no extradition if there is a risk for torture/death penalty.

2. Yes, they could theoretically request extradition for other crimes such as hacking. However, hacking can still qualify as a political crime if it is aimed at the state. For example the case Ö 3277-09 involved a man from Turkey whose extradition from Sweden was sought on the basis that he had committed robbery and the money were to be used to buy weapons. The fact that his extradition to Turkey was denied because the offense was regarded to be a political one is illustrative of the Supreme Court’s extensive interpretation of what constitutes a political offense.

Mind sa...

The thing about extradition to the US is this: To judge if its legal or not you need to be a legal expert. Whenever there is a political will to do something, in this case get Assange to the US, experts are ignored. They are to few to sway the public if the media is not on their side. Expect massive propaganda in media and before you know it he is sent to the US while the public is cheering on. The sad thing about humanity is that propaganda works.

Anonym sa...

In Tuesday's Independent:

The politicisation of the Swedish case was clear from the initial leak of the allegations to the prosecutor's decision to seek Assange's extradition for questioning – described by a former Stockholm prosecutor as "unreasonable, unfair and disproportionate" – when the authorities have been happy to interview suspects abroad in more serious cases.

Is that correct?

Anonym sa...

If any of us were Assange, would we gamble the rest of our life on whether or not Sweden learned anything from handing over the Egyptians to the US? No one in Sweden was punished. They paid a paltry sum to the victims to close the incident. If anything, they learned it's no problem. The US is happy to throw people it labels terrorists into a hole without a trial. That's a lot to lose against "trust us, we've learned our lesson but we can't promise we won't do it again." Especially if all that might happen is Sweden writing an apology check to Assange for $500,000, which he can't cash in a US brig.

Is there any truth to the rumor that the Minister of Justice who approved the renditions owns the law firm representing one of the accusers? If so, why is he still allowed to practice law?

Fiarom sa...

I just had a read of Section 58 of the 2003 UK Extradition Act there, and I'm not sure that it is possible to appeal onwards extradition. In other extradition cases, leave to appeal may be sought "on a question of law or fact". Section 103 says:
"If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
The relevant decision is the decision that resulted in the case being sent to the Secretary of State."

Under Section 58 the case hasn't been sent to the Secretary of State by a judge, it's been sent by a Category 1 country seeking leave to extradite someone onwards to a Category 2 country. The legislation sets out appeal procedures in all cases but those which fall under Sections 58, 130 and 131 (all of which deal with onward extraditions, whether to Category 1 or Category 2 countries) and Section 116 says: "A decision under this Part of the judge or the Secretary of State may be questioned in legal proceedings only by means of an appeal under this Part" - a Part under which Section 58 doesn't fall.

2003 Extradition Act is here: http://www.homeoffice.gov.uk/publications/police/operational-policing/extradition-act-2003?view=Binary

Any thoughts appreciated!

Anaesthisia sa...

Would the supreme court - if an extradition request from the US were filed upon JA's arrival in Sweden - undertake any assessment as to if the alleged unlawful act actually falls under US jurisdiction?

A

Mark Ridley sa...


Johan Tjäder sa...

"You can't claim copyright on works that are not published."

So if I break into J.K.Rowling's house and steal the manuscript of her Harry Potter follow-up I can publish it myself and she can't sue?

Brilliant! Cheers that's made everyone's Xmas presents a load cheaper this year :)

Mark Klamberg sa...

Anaesthisia,
Yes, the Supreme court have to assess whether the legal requirements for extradition are fulfilled. Article 2(1) of the supplementary convention between the United States and Sweden from 14 March 1983 provides that "An offense shall be an extraditable offense only if it is punishable under the laws or both Contracdng states by deprivation of libeny for a period of at least two years."

Anaesthisia sa...

So are there any crimes that could have been on the shortlist that simply wouldn't do for the US since the jail terms prescribed in Sweden are simply too short?

A

Mark Klamberg sa...

Yes, several. There is a shortlist somewhere but I cant find it now. It is crimes such as speeding, minor theft and minor assault. Military and political crimes that have a jail terms of two years or more are still excluded.

Anaesthisia sa...

I was more thinking of a shortlist of crimes that Assange may be targeted for.

A

MissyM sa...

As much as I doubt Assange's high profile would allow this, in 2010 it was reported (ironically through Wikileaks) that military investigations in 2006 showed that the restrictions put in place after the CIA renditions were exposed were being ignored:

http://www.swedishwire.com/politics/7497-cia-rendition-flights-stopped-by-swedish-military

So I think we have reason to suppose that there are still renditions taking place with Sweden's involvement regardless of the law.

Mark Klamberg sa...

Dear MissyM,
I remember that incident well. It shows that the Swedish Government has learnt its lesson and acted against the US in relation to extrajudicial renditions. Thank you for reminding me!

emirjame sa...

I do not understand why the Swedish prosecutor still wants to ask Assange anything. She claims to have enough evidence to prosecute & that the interrogation is only there to give Assange a chance to exonerate himself.
So- he is clearly not valuing his 'chance' - let her now show that she speaks the truth and charge!!!
It would help the women & make Sweden look much less manipulative and secretive!

Olof sa...

Mark,

It would be far more impressive, were not the laws allowing the rendition still on the books and had anyone been held accountable.

It took five years after the 'surprise' that SÄPO got at Arlanda until Sweden acted, at which point it was obvious Sweden was going to get censored by the UN for violating the torture ban. Perhaps stopping the flights had more to do with risking ICJ prosecution (which unlike the Swedish judiciary might actually care) than any concern for human rights?

Considering that the plane in question had about 50 prisoners on board, that makes it likely that at least hundreds and probably thousands of human beings were brought through Sweden and had their plane refuelled on their way to torture.

Until responsible parties have been held accountable and the law has been changed to prevent deportation to countries or territories practicing torture or capital punishment no matter what guarantees are offered I find the argument that Sweden has changed profoundly unconvincing.

Best regards,
Olof

Ilkley Chess sa...

Mark

1. Why has no Swedish citizen even been charged with assisting rendition and torture?

2. The victims had tranquillizers inserted into their anuses against their will. Isn't this a serious sexual assault committed on Swedish soil?

3. Why hasn't Sweden asked for the extradition of the CIA agents who carried out this crime?

Nicholas sa...

Hi Mark,

Thanks again for the clear explanations on temporary surrender and alternative charges Assange could be pursued for. I have just a few more questions if you don't mind:

1. Although there is a temporary surrender agreement between the US and UK, the UK has already agreed to extradite Assange to Sweden. Does this mean that in practice it would be more difficult to extradite Assange from the UK because the UK now has to allow the Swedish extradition process to conclude? Or at the very least, would it not take a hell of a lot longer to extradite it from the UK because there would be a lengthy legal wrangle over which extradition request should be given priority? Or could Sweden suddenly drop their extradition proceedings at the request of the US?

2. Given that we know that nation states have broken international law in the past or as you said in an earlier comment, make mistakes sometimes, do you think the US would honor its legal commitment to return Assange to Sweden or the UK after the have completed proceedings against him if he were subject to temporary surrender? In other words, would Assange's legal team have a legitimate fear that the US may break the law and keep Assange in the US?

3. Does the publicity surrounding this case mean that any kind of fair trial for either Assange or the women involved has been hopelessly compromised?

Thank you.

Rob sa...

Mark

I've read a couple of times that a person can only be "charged" when on Swedish soil. Is that true? Would seem to be the answer to emirjame's point if so.

Anonym sa...

If you were Assange, would you go Mark? You're so sure you won't end up in the US because of some backdoor?

I wouldn't trust the Swedish system for shit. But then again, everyone knows theres no corruption in Sweden...

Right?

Mário Machado sa...

I want to republish this post with full references with you allow me to do so.

My blog is www.coisasinternacionais.com

Best regards,

Mário

Mark Klamberg sa...

Mario, you are welcome to do that. Please note that I will do an update on the discretion if the Government in the near future.

Mark Klamberg sa...

Rob,
I know of no such rule, must check. However, trial in the absence of the accussed is not allowed. If a person is detained, the trial shall be held within two weeks after the an indictment has been issued. The issuance of an indictment is the end of the investigations and all interviews should at this be stage completed. That may be an explanation why prosutors normally want the suspect to be available for trial when they issue an indictment

Mark Klamberg sa...

It should that the trial is to be held within one week after indictment is issued if the accussed is detained. See chapter 45 section 14(2) of the procedural code

Ilkley Chess sa...

Mark, you seem to have missed my questions for you.

viz

1. Why has no Swedish citizen even been charged with assisting rendition and torture?

2. The victims had tranquillizers inserted into their anuses against their will. Isn't this a serious sexual assault committed on Swedish soil?

3. Why hasn't Sweden asked for the extradition of the CIA agents who carried out this crime?


I would be grateful if you could answer them as they would demonstrate how Sweden consistently applies its laws on sexual offences and extradition.

thanks

Gerard

Mark Klamberg sa...

Ilkley, I agree that monetary compensation is not enough, individuals should be held accountable. Sweden is not perfect but I dont think that UK has a better record and Assange has been there for 500 days. I dont buy into the theory that the extradition to Sweden is a conspiracy to get Assange to the US.

Ilkley Chess sa...

Thanks Mark, but I don't think you've answered my questions.

You have answered three other questions of your own.

1. Is monetary compensation enough?
2. Is Sweden perfect or the UK better?
3. Is there a conspiracy to get Assange to the US?

Is there a reason why you can answer your own questions but not mine?

Nicholas sa...

Hi Mark, Thanks for your continued efforts on this issue. I think you may have missed my 3 questions posted last week. Would you mind clarifying these points briefly:

1. Although there is a temporary surrender agreement between the US and UK, the UK has already agreed to extradite Assange to Sweden. Does this mean that in practice it would be more difficult to extradite Assange from the UK because the UK now has to allow the Swedish extradition process to conclude? Or at the very least, would it not take a hell of a lot longer to extradite it from the UK because there would be a lengthy legal wrangle over which extradition request should be given priority? Or could Sweden suddenly drop their extradition proceedings at the request of the US?

2. Given that we know that nation states have broken international law in the past or as you said in an earlier comment, make mistakes sometimes, do you think the US would honor its legal commitment to return Assange to Sweden or the UK after the have completed proceedings against him if he were subject to temporary surrender? In other words, would Assange's legal team have a legitimate fear that the US may break the law and keep Assange in the US?

3. Do you think the publicity surrounding this case means that a fair trial for either Assange or the women has been hopelessly compromised?

Ilkley Chess sa...

Nicholas, I hope you have better luck getting your questions answered than I.

Klamberg is clearly unwilling to answer my questions as I would show how the application of the rule of law in Sweden is subject to political interference.

The rendition and torture of the two Egyptian refugees was a major crime and the perpetrators known to the Swedish authorities. So why not a single prosecution or request for extradition?

Selective justice is no justice.

Ilkley Chess sa...

This is what passes for justice in Sweden.

http://www2.ohchr.org/english/bodies/cat/docs/followup/CAT.C.SWE.CO.5.Add1.pdf

21. Public prosecutors on different levels have looked at the question whether a criminal investigation should be initiated in the cases of Mr Agiza and Mr Alzery. Both a district prosecutor and a Prosecutor-Director have decided not to initiate a preliminary investigation. Even the Parliamentary Ombudsman has decided not to institute a criminal investigation in these cases. The Prosecutor-General has decided not to resume the preliminary investigation.

Could Mark Klamberg explain this?

Anonym sa...

I think Ilkley Chess really hit the nail on the head.

"OK," Mark Klamberg, seems to be saying, "Sweden is not perfect, but now let's examine the legal intricacies of the extradition process assuming that every single agent involved in them is nothing but perfectly inmune to political interference." Truly Panglossian.

It's all too evident why in such high-profile cases as Assange's political considerations should also be factored in. I suppose assertions such as this expose those who make them to being branded conspiracy theorists, and promptly dismissed out of hand. Of course in order to do so you have to pretend that the Agiza and al-Zery case never happened. It's just part of the long established tradition of ignoring embarrassing and inconvenient facts.

Omar Salem sa...

Do you think that military/political offences would cover 'conspiracy to disclose classified document', which it is suggested that Assange could be prosecuted for here (http://www.google.com/hostednews/afp/article/ALeqM5hKgeAFt-Jvt45zkBjEpqF4DWDS-A)?

Khairul Islam sa...

Thank you for a highly interesting piece.In your words however, it would be a "departure from established practice", but as far as I can tell you do not rule it out on legal grounds.
Legal Shield review

listiana suherman sa...

nice info...

Rasmus sa...

As a fellow swede I can only laugh at this. Everything you write is true, but it's not the way the world works.

On paper it looks good. But then again Sweden did send ppl to Egypt for torture and possibly death.

On paper FRA wasn't allowed to spy in the wires untill after the debated "FRA-law" but still admitted to have done so for over 10 years, illegally.

What I am trying to say is that it matters little what is written in the law when it comes to how Swedish authorities act.

Rasmus sa...

I have a hard time seeing anyone with tech knowledge taking swedish courts seriously after the TPB-scandal.

You have the issue with the cop working the case who, just happened, to start working at Warner Brothers. WB even admitted to having bought this police officer, Jim Keyzer. (http://torrentfreak.com/warner-confesses-pirate-bay-cop-compromised-080605/)
Seeing you know swedish law (not reality but that big book...) I would be rly interested in what price a swedish police officer and his investigation costs. I mean, if they sell out like that, it got to be legit, meaning the prices should be standardized. (Like for example my client pays 90euro/h to hire me or someone with same skills).

The fact that the raid was issued due to threats from MPAA (documents was published on SVT and MPAA was not rly beeing secretive about it) does just give you a small hint of the US influences over swedish law enforcement. I would much appreciate if you could explain just how that trial would have happened if it wasn't for the american influence.

Remember, TPB was known by swedish law enforcement for ages. They choose to not act untill ordered, by swedish judge who, in turn, where acting on orders from MPAA. The investigation was made by a policeman working for the accusers.

Following the trial I was surprised (and ashamed of the low lvl of tech knowledge) when SCREENSHOTS were used as evidence. I was playing a lot online back then and none would believe anything seen on a screenshot seeing u can manipulate it with ease. However that is just a small remark. Put everything together and you might realize why people will not trust swedish courts for decades to come.

I could go on all night really, I did write something on this trial when it was happening and if I can find that I might give you at least 20+ examples of mistakes made. The entire trial was a disgrace to everything you call justice and the sad part is that most issues were either due to US involvement (sell-out-trial fits this case like a glove), biased judges with no tech-knowledge whatsoever. I mean, Norström even removed his statements and name from a few websites connecting him to the anti-piracy lobby.

That was probably the most speaking example of how bad that case was handled. The judge was biased, none really questioned that he was against piracy, seeing that's the law. But when all of a sudden he tries to wipe out the trace of him in this organization it just becomes laughable. Truly pathetic since it tells us two things. First of all, Norström felt that his activity with these organization were a threat to his independence, otherwise it would not been edited when the biased card got into play. A guilty conscience reveals itself. Then we have the issue of what this actually tells us about Norströms tech knowledge. It's non-existant. If you think trying to remove evidence from the internet during one of the most (online) watched trials off all time.

Bah if only I could find my paper on this.

Altough I should point out that I don't think this is the reason Assange is in hiding, I don't like to make statements off things I don't know but I doubt he got this much insight on just how corrupt our law enforcement is.

TLDR:

I don't believe this case is connected to Assange absence from The royal kingdom of Sweden, I simply like to point out that there are more than good reasons to not trust swedish independence. And if Assange did follow the TPB-trial, he probably knows better than to ever set a foot on swedish soil.