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Assange, FSI, Marianne Ny, & The Swedish Media
Their way of thinking doesn't apply anymore.
STOCKHOLM/LONDON (Rixstep) — The 'skeleton argument' released yesterday by FSI provides a devastating condemnation of Marianne Ny and Sweden. Yet the Swedish media refuse to even link to the document, much less intimate its contents or comment on it.
Before anything else - and this concerns Swedes even more - download and study it now.
Despite the corny file extension, it's a PDF. So if your browser doesn't add the PDF file extension, add it yourself. Then open the file in your PDF reader.
The salient - and most interesting - points are:
- Marianne Ny isn't authorised to issue a European Arrest Warrant (EAW). Referring to the 2005 case Enander v The Swedish National Police Board, the Crown Prosecution Service (CPS) confirmed that the sole issuing authority in Sweden is the national police board. There's no evidence this position changed. Moreover, the British Serious Organised Crime Agency (SOCA) received a request for proof of Ny's authority on 24 December. Presumably SOCA have contacted Sweden; the Swedes have so far refused to reply.
- A prosecuting authority applying for an EAW must go through several channels. Amongst others, they have to take the matter up with the national prosecutor's office and the cabinet minister of foreign affairs. Evidently nothing such was done in this case.
- Extradition sought for improper purpose. EAWs can't be issued for 'questioning' which Ny has repeatedly said is all she's after. Conversely, Ny's afraid of formally declaring charges for then she'd be required to release all documentation, something she's made clear she doesn't want (and refused) to do.
- The purported offences aren't even extradition offences. Brits have no counterparts to what Ny's referring to.
The document goes on to clarify the basic positions and reveals even more sordid details about 'legal procedure' in Sweden.
√ EAW for questioning only, not for purpose of prosecution. This constitutes an abuse of process.
Ny has repeatedly and publicly stated she sought the EAW simply in order to facilitate a questioning and without yet having reached a decision about prosecution.
Further, Ny's claim that all the 'normal procedures for getting an interrogation' had been 'exhausted' is false. Both Hurtig and Assange made repeated attempts to coordinate an interrogation but all such attempts were rebuffed by Ny.
British justice Ouseley found that Assange 'has expressed, and I see no reason to doubt it, a willingness to answer questions, either over the telephone or some other suitable form of communication if the prosecutors in Sweden wish to put them to him'.
In answer to the above comments, Ny has repeatedly said only that she has 'no comments'.
Further, Ny stated she was not in touch with Hurtig. This is also false: Hurtig was in constant contact with Ny's office for all of September but Ny wouldn't return his calls.
√ Communication with Australian embassy in Stockholm. Ny was in contact with the Australian embassy in Stockholm because they evidently interceded on Julian Assange's behalf.
Dear Mr Stephens
As previously advised our Ambassador in Stockholm made representations to Ms Marianne Ny, Director of the Public Prosecution Authority in Sweden, for access to the documents requested in your letter of 7 December. He has received the following response:
Your request to obtain copies of the investigation against Julian Assange has been denied. This is mostly due to the confidentiality of the bulk of the requested documents which are only available in Swedish. Assange's lawyer Björn Hurtig received a copy of the majority of the investigation documents during his detention hearing in the Stockholm District Court on November 18. The same documents were also filed in court. The Stockholm District Court and defendant [sic] were verbally given a detailed explanation of the contents of the small number of documents not included in the written material that was submitted. The defence has asked for copies of all materials. Under Chapter 23, paragraph 18 of the Code of Judicial Procedure, I have decided to reject the defence's request to obtain copies of the documents not surrendered before the detention hearing. I consider it would be detrimental to the ongoing investigation into the matter.
I want to emphasise that before a decision to prosecute the defendant has been made, he will be given the right to examine all documents relating to the case. If the prosecution goes ahead, the suspect will have the right to receive a copy of the investigation.
The right to access information about the case that Assange and his councillor Björn Hurtig have been privy to, does not include any third parties. As I have emphasised the defence has already received copies of the material that may be sent to Assange. If the Embassy so wishes, it is possible to get the file which has been released to the media. All subsequent documents to be added in the investigation after 1 September 2010 are confidential and I can therefore not disclose them.
It is possible to appeal against the refusal to disclose documents. Should you wish to appeal, I would ask you to come back to me so that I can issue a formal decision which can be appealed.
On 16 December the Australian Ambassador spoke directly to Ms Ny and confirmed that the key points she wished to convey were:
- our request for access to the documents requested has been denied.
- the defence has already been granted access to the majority of the investigation documents (in Swedish) and has been briefed verbally on those documents not included in the written material already provided.
- if a decision is made to charge Mr Assange, he and his lawyers will be granted access to all documents related to the case (no such decision has been made at this stage).
- Third parties (including the Australian Embassy) do not have the right to access information about the case.
√ Hurtig was given access to the full case files but was not allowed to make copies or even take notes. And yet he's gone on record several times since then to say:
I have been asked about the likely outcome of the proceedings if Mr Assange is extradited to Sweden. In my opinion, it is highly unlikely Mr Assange will be prosecuted at all, if extradited.
Hurtig has gone even further, referring to the SMS transcripts he read.
If I am able to reveal what I know, everyone will realise this is all a charade. If I could tell the British courts, I suspect it would make extradition a moot point.
√ European Arrest Warrants are only to be used for the purposes of prosecution. Yet Ny can't declare an intent to prosecute - she'd have to turn over the full case files.
Ny's whole idea - the subject of her 'research' - is to develop a new method of processing cases that not only violates several statutes of law but also brings things back full circle to the witch trials of the 1600s.
√ Mere suspicion isn't enough for an EAW. This is enforced by the Extradition Act 2003. Lord Steyn of the House of Lords in the decision in Re Ismail:
It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of 'accused' persons.
It is also common ground that it is not enough that he is in the traditional phase 'wanted by the police to help them with their inquiries'.
Something more is required.
This is a principle that's been reaffirmed in several cases under the Extradition Act 2003.
√ Abuse of process. The FSI document accuses Marianne Ny of 'abuse of process', citing that the law and procedure for deciding whether extradition proceedings should be stayed as an abuse of process is well established.
- Marianne Ny has not yet decided whether to prosecute Julian Assange;
- Marianne Ny is seeking extradition for the purposes merely of questioning Julian Assange in order to further her investigation;
- Arrest for the purposes of questioning would have been, and remains, unnecessary given that repeated offers have made on Mr Assange's behalf for him to be questioned by her, which she has rebuffed; and
- The proper, proportionate, and legal means of requesting a person's questioning in the UK in these circumstances is through Mutual Legal Assistance (Wikipedia).
√ Case law confirms it is improper to use an EAW merely for questioning, absent a clear decision to prosecute. The appropriate remedy is for the person to be discharged (released). And this all the more so when it is demonstrated that Ny's claims about exhausting procedures are false. Further: Ny never sought the services of 'MLA' as she should have.
Marianne Ny went from informal discussions about arranging an interview of Assange straight to the issuance of an EAW without taking the
reasonable and proportionate intermediary step of formally summoning him for an interview or formally requesting his interrogation.
[It should also be noted the Swedish government were informed weeks in advance of the plans for the EAW on 18 November yet no one could get the procedure right or check through the proper governmental channels or check applicability in all that time. Ed.]
√ Marianne Ny's 'witch trial' approach to prosecution. FSI are in the process of translating these documents into English.
√ Marianne Ny's EAW is defective in respect of section 2 of the Act. After four revisions, NY's EAW reads as follows in the preamble.
'This warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.'
But section 2(3) of the Act specifies the following.
(3) The statement is one that -
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
But Ny's preamble is ambiguous in that regard, leaving it entirely unclear whether the EAW is for conviction, accusation, or merely for an interrogation. And nowhere in the application is Assange referred to as an 'accused'. This might seem as a mere technicality but a previous ruling in the case of Aszataslos indicates it is not so.
The EAW does not 'indicate unequivocally that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified'. In Aszataslos the court considered the position made in box (e) of the warrant where the requested person was referred to as an 'accused'; Marianne Ny doesn't offer the same in her request.
√ Marianne Ny's clear unequivocal public statements. These to the media of course - but also to the Australian High Commission and to the effect that there'd not been a decision whether to prosecute Mr Assange and that the EAW had been requested solely for the purpose of questioning him further. FSI comment:
'This is a highly unusual, if not unprecedented, state of affairs.'
And that in turn gives the British court the right to examine 'external evidence' - something Marianne Ny wants to avoid. FSI therefore submit that the EAW is not a correct warrant and that the British court has no jurisdiction over Julian Assange.
√ Marianne Ny's adamant non-disclosure. 'Ny's correspondence with the Australian embassy reveals she's on the horns of a dilemma', write FSI. 'As is clear from that letter, if she had taken a decision to prosecute Mr Assange, then he would be entitled to examine all documents relating to the case and to receive a copy of the investigation.'
Assange has not been provided with copies of the SMS messages sent by the complainants in which - in contrast to what is alleged in the EAW - Sofia Wilén says she was half asleep at the time of the intercourse.
[Marianne Ny bumped the 'half asleep' to 'fully asleep' in the EAW. This in itself constitutes prosecutorial abuse. Ed.]
√ The other SMS messages. Hurtig was allowed access to what he's been told are the complete SMS messages but he was not allowed to make copies or notes and was further embargoed from speaking specifically about them under threat of disbarment.
The SMS messages speak of 'revenge' and the opportunity to make 'lots of money' and of going to Expressen (as actually was the case).
√ Anna Ardin's 'Seven Steps to Revenge'.
7 Steps to Legal Revenge by Anna Ardin
Step 1: Consider very carefully if you really must take revenge. It is almost always better to forgive than to avenge.
Step 2: Think about why you want revenge. You need to be clear about who to take revenge on, as well as why. Revenge is never directed against only one person, but also the actions of the person.
Step 3: The principle of proportionality. Remember that revenge will not only match the deed in size but also in nature. A good revenge is linked to what has been done against you. For example if you want revenge on someone who cheated or who dumped you, you should use a punishment with dating/sex/fidelity involved.
Step 4: Do a brainstorm of appropriate measures for the category of revenge you're after. To continue the example above, you can sabotage your victim's current relationship, such as getting his new partner to be unfaithful or ensure that he gets a madman after him. Use your imagination!
Step 5: Figure out how you can systematically take revenge. Send your victim a series of letters and photographs that make your victim' s new partner believe that you are still together which is better than to tell just one big lie on one single occasion.
Step 6: Rank your systematic revenge schemes from low to high in terms of likely success, required input from you, and degree of satisfaction when you succeed. The ideal, of course, is a revenge as strong as possible but this requires a lot of hard work and effort for it to turn out exactly as you want it to.
Step 7: Get to work. And remember what your goals are while you are operating, ensure that your victim will suffer the same way he made you suffer.
[Ardin's explained online why 'payback' is sometimes necessary for her - and also that some of her friends as a result were 'casting spells' on her. Ed.]
FSI submit that the SMS messages and the 'seven steps' significantly undermine not only the prosecution's case but also the request for Assange's extradition.
√ Clear violation of ECHR law. Assange has never been informed in a language he understands of the charges against him, if indeed there are any formal charges, until he was arrested on the EAW. Unless Marianne Ny is violating ECHR law, this indicates once more that Assange is not a formal suspect.
√ The horns of the dilemma. Either extradition is sought for purposes of prosecution, whereby Assange is entitled under Swedish law to full disclosure of the case file including all the SMS messages and blog evidence; or extradition isn't sought for purposes of prosecution, whereby the EAW isn't valid.
And that amounts to an abuse of process by Marianne Ny either way.
√ Abuse of legal process in Sweden. This is a particularly devastating section of the document.
'Further expert evidence from distinguished Swedish legal authorities will show that Mr Assange has been the victim of a pattern of illegal and or corrupt behaviour by the Swedish Prosecuting Authorities.'
- Contrary to Swedish law, an acting Prosecutor released his name to the press as the suspect in a rape inquiry, thus ensuring his vilification throughout the world;
- After the Swedish authorities announced that Mr Assange had been cleared of rape by the Stockholm prosecutor, a secret process took place from which Mr Assange and his lawyers were excluded and by virtue of which, at the behest of a lawyer acting for the complainants, the rape allegation was revived by a new prosecutor, Marianne Ny. This secret process was a blatant breach of Article 6 of the ECHR;
- The repeated refusal of the new prosecutor, Ms. Ny, either to interview Mr Assange on dates offered in Sweden or to interview him by telephone, Skype, interview or at the Swedish embassy in London was disproportionate or unreasonable behaviour under Article 5 of the ECHR;
- The prosecutor's office has refused all requests - and still refuses all requests - to make the evidence against Mr Assange available in English, which is his right under Article 6 of the ECHR;
- The prosecutor's office has given Mr Assange's Swedish lawyer a 98 page evidence file in the Swedish language. It has, illegally under Swedish law, made extracts of that file available to the English media, with the object that he should be further vilified in the UK and elsewhere. One newspaper has admitted that it was granted 'unauthorised' access to the prosecution file. This was a breach of Mr Asssange's fair trial and privacy rights.
- Swedish law apparently permits and even pays for the lawyer representing complainants to attack the credibility of suspects even before they are charged. In this case, the Swedish state has paid Mr Claes Borgström to give interviews to international journalists assassinating the character of Mr Assange and prejudicing his fair trial on these charges. Sweden has no law of contempt of court or of perverting the course of justice of the kind that is necessary to prevent media character assassination of a potential defendant prior to charge. This is a breach of Article 6 of the ECHR.
- As noted above, the Swedish prosecution refuses to disclose Twitter and SMS messages to and from the complainants at relevant times, which messages destroy their credibility. This is a breach of UK law as well as European human rights law.
√ The offences aren't extradition offences (section 10 of the Act). As the House of Lords ruled in Norris v Government of the USA and others in 2008, 'relevant conduct' corresponding to offences in the United Kingdom must be applied. None of the alleged offences as set out in box (e) of the EAW constitute offences in England and Wales. And Marianne Ny has so far refused to state in an opening note precisely what offences in the UK the EAW is issued for.
√ Extraneous considerations. Most notably the eagerness of Sweden to work with the US on rendition operations, that the current prosecution's reopening of the case is politically motivated, and that the requisite mens rea is precluded when it comes to Sweden's strange legislation. Further: the outbursts of right-wingers in the US make it patently obvious Assange could never be safe there. Both Huckabee and Palin are quoted directly.
√ Human rights. An extradition would be incompatible with articles 3, 6, 8, and 10 of the ECHR. This includes established cases of Swedish cooperation with the US in matters of rendition where the Committee Against Torture found Sweden failed to fully cooperate in their investigations after the fact.
The United Nations Human Rights Committee also found Sweden committed multiple violations of the prohibition on torture.
'Based on its record as condemned by the United Nations Committee Against Torture and the Human Rights Committee, Sweden would bow to US pressure and/or rely naively on diplomatic assurances from the USA that Mr Assange would not be mistreated, with the consequence that he would be deported/expelled to the USA, where he would suffer serious ill-treatment, in breach of Article 3 of the ECHR, as well as in breach of Articles 6, 8 and 10 of the ECHR.'
Marianne Ny and the Swedes have to come up with something in three weeks. Obviously they've already got access to the FSI document (that was the idea) but it's not certain they'll be able to do anything about it (or even be capable of dealing with it).
They have to deal with Marianne Ny not being authorised to issue an EAW; of her 'abuse of process' in requesting an EAW; the fact that EAWs cannot be used solely for questioning, otherwise she has to release the complete case files in a language Julian Assange understands; the likelihood the US will 'coerce' Sweden to go along with 'kidnapping' Julian Assange based on previous behaviour in violation of the United Nations; the fact the cited offences are not offences under British law; and so forth.
Seriously: did Marianne Ny and the Swedes do any due diligence at all?
They of course have the assistance of the Crown Prosecution Service but even that isn't certain to be of any significant help.
The best move for Ny and the Swedes may be to 'quietly' withdraw the EAW application.
The Swedish Media
The Swedish media have of course issued a complete blackout on the above document. There's a scant mention of some 'document' being released but - as opposed to most other conscionable news sources - there is no link. Swedes relying solely on their own news organisations for the truth won't know of it.
[But of course the people at Flashback do - they've already gone through the document with more due diligence than the 'journalists'.]
Here's part of a typical page at Expressen with the one of two reports written about the court date in Belmarsh. The article - if you can call it that - is of course in the middle. And they evidently needed two journalists to put it together. 150 words.
The article itself - the only content on the page - takes less than one quarter of the total web page real estate. This may be common for all tabloids but it's even more so with the Swedish ones. And this is still nothing compared to Aftonbladet.
As might be detected by the armchair polyglot, the big headline today has nothing to do with the floods in Australia or the abuse of one of her native sons but whether they Aftonbladet have more page views than Expressen. There's no articles on this page anyway - they're only links.
Tabloids are tabloids but they've had a special function in Sweden where most people live in flats and commute with public transportation - they're contact shields. They protect people stuffed into subway trains, commuter trains, suburb trains every afternoon on their way home from work. Hold the rag up in front of you and shut out the world.
Swedes weren't always so interested in news anyway: back when they were the 'one true light' against the powers of darkness (from both east and west) in the Cold War, they were happily isolated and really didn't want to know too much about what was going on outside their borders.
Keep the articles scarce and brief, stick to a few minor facts, flip the page and move on.
But entry into the EU changed all that. And then someone got the idea to actually bind the country with continental Europe.
People got sick - physically sick - because their immune systems took a while to adjust. Then they started thinking 'now we can live anywhere we want'. And some commuted out to Arlanda, bought one-way tickets to the continent's capitals, and got themselves jobs on the spot in exotic places.
But their reading habits never changed.
If I am able to reveal what I know, everyone will realise this is all a charade. If I could tell the British courts, I suspect it would make extradition a moot point.
- Björn Hurtig
I can tell you that the Swedish prosecution still hasn't provided copies of those SMS texts that have been referred to. Those texts are some of the most powerful exculpatory evidence. In Australia prosecutors have a very grave duty to disclose such evidence to courts when seeking the grave exercise of a court's power against an individual. Yet in Sweden in this case, in the first hearings to obtain an arrest warrant, those texts were not submitted to the Swedish court, which is highly improper.
- James Catlin
Sunday Times: Accuser snapped me in the nude
Industry Watch: Assange: The Hornets Nest
Hall of Monkeys: Three Women II: The Sex War
Red Hat Diaries: How to Rape Julian Assange Twice