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Assange Case: Prosecutors Not 'Judicial' in Sweden

Their own law's against the notion.


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STOCKHOLM/LONDON (Rixstep) — Julian Assange had to wait until the end of May of this year to hear the verdict in his case before the UK Supreme Court on whether Swedish prosecutor Marianne Ny, who'd signed the European Arrest Warrant for Julian Assange, was a 'judicial authority' entrusted to issue such warrants.

A meme often heard during the long wait was 'there's a judge in judicial', and for most people, the notion that a prosecutor could also act as a judge seemed bizarre at best.

But in a 5-2 ruling, the UK Supreme Court ruled that Marianne Ny could indeed be considered a 'judicial authority' because the term in the French usage includes prosecutors. Lord Phillips went so far as to claim British parliamentarians were 'misled' in thinking otherwise.

Cambridge University recently released a report refuting Phillips' claims, and now it turns out that even Sweden can't agree with him.

1986/87:112

The following is excerpted from proposition 1986/87:112, covering arrest and detention, added to the Swedish criminal code as amendment 1987:1211. It was submitted on 12 March 1987 by cabinet ministers Kjell-Olof Feldt and Bengt Göransson.

Chief contents of the proposition

This proposition suggests changes to the rules for statutory deprivation of liberty, arrest, arraignment, and detention. The changes, which are principally based on propositions from the detention study of 1983, touch on the conditions for using detention and arraignment as well as the limitations of deprivation of liberty which are to be brought before a court.

Concerning conditions for detention, the chief rule even in the future shall be that one may be detained only if suspected on probable cause of having committed a crime for which the sentence is one year prison or more. As is the case now, there needs to be one of three possible additional requirements, namely that there is a flight risk, that the suspect could interfere with the preliminary investigation, or that the suspect could commit further crimes.

Further, it is proposed that the rules for court decisions on deprivation of liberty be adapted to the standards developed through the interpretation of the European Convention for Human Rights. According to the proposition, the prosecutor shall submit the petition for detention to the court the same day as the decision on arraignment or at the very latest the following day.

/* * */

Sweden is bound by the European Convention of 4 November 1950 regarding protection of civil rights and fundamental freedoms. According to article 5(1) no one may be deprived of their freedom save in certain well defined cases. One of these cases is when someone is to be brought before an administrative authority on probable cause of having committed a crime. One who has been deprived of freedom on that basis shall in accordance with article 5(3) be promptly (without delay) brought before a judge or other officer who in the law has been entrusted with 'judicial power' (the power to render verdicts).

The above mentioned statutes of the European Convention are an expression, particularly considering deprivation of liberty occurs without a court ruling in a customary way and finding the suspect guilty of the alleged crimes, for how important it is that deprivation of liberty be quickly tested by an authority that is independent of the leader of the preliminary investigation, and that this deprivation of liberty not be allowed to continue longer than unavoidably necessary. Comparable rules are to be found in principle even in the United Nations Convention of 16 December 1966 on civil and political rights to which Sweden is also bound.

In Sweden, the prosecutor has been regarded as an officer entrusted with such 'judicial power' cited by the convention. The matter of limitations for Proposition 1986/87:112 for court procedures has with that interpretation not been important as the limitations for the arrest decisions of the prosecutor have without a doubt in most cases fulfilled the convention's requirement for 'promptness'. But in later years the European Commission for Human Rights and the European Court for Human Rights, the organs which ensure the convention is being followed, have made a number of statements about the interpretation of article 5(3) that show that the Swedish position is in conflict with the convention.

The matter of limitations in connection with deprivation of liberty was put back on the table during this study through two cases against Sweden which were brought before the European Commission and in the one case also before the European Court. In the one case, the commission ruled that a Swedish prosecutor doesn't meet the convention's requirements for being an officer entrusted with judicial power, and that an arrest hearing before a court only after seven days of deprivation of liberty does not meet the the convention's requirement of 'promptness'. The commission noted that one had accepted four days delay in earlier cases from the time for the deprivation of liberty. A closer look at these cases is found in the report (pp 54 ff).

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