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Sweden: New Case Law for Rape Trials
Back in 2009 that is. Did anything change?
ANKDAMMEN (Rixstep) — The following was published in the duckpond (Swedish) media by SvD (Svenska Dagbladet) on Friday 14 August 2009, one year to the day before Julian Assange's talk in Stockholm. It shows what a predicament the Swedish judicial system has been in and is still in. The reader need only peek briefly between the lines to understand how the cornerstones of rule of law and presumption of innocence have been nonexistent in Sweden.
Despite having one of the flimsiest (and possibly most corrupt) judiciaries in the western world, Swedes are wholesomely trusting. They never question the disdain for trial by jury, use of 'lay judges' who to a startling degree turn out to have police and criminal records, disinterest in educating these lay judges in legal basics, severely limited ability to appeal, and so forth.
Cases in modern times that shock the nation (and the world around) are not rare: da Costa, Butt, Quick, and now Assange, to name but the four most famous. Not to speak of today's minister for justice who got a high school diploma from Akron Ohio and no more - someone who has no experience with the law and little respect for it.
The law is supposed to protect people, not threaten them. But that's not the way things work in Sweden. Welcome to the Land of the Midnight, Mr Assange.
1. Supreme Court Ruling 3 July 2009
From SvD (Svenska Dagbladet) Friday 14 August 2009.
On Friday 3 July this year a ruling came down from the supreme court that gives hope to convicted rapists. By tearing up two appeals court convictions where it was only word against word, the supreme court sent a message to the judicial system: it is no longer enough if the complainant's story is as believable as that of the accused.
[Yes you read that right: since 1991, when the likes of 'FI' pressured the courts to change, it's been possible to convict with no evidence and even when the version of the accused is as believable as that of the complainant. It's totally true. And yes, presumption of innocence was out the window. Defending oneself against a crazy you don't know and have never met by stating 'I've never seen her before in my life' is not a valid argument in Sweden where the rule is presumption of guilt. Welcome to the Land of the Midnight. Ed.]
According to Johan Munck, chairman of the supreme court, the verdicts should have limited value as precedents. Above all else one increases demands on police investigations, he says.
Already two convicts have been released by virtue of the new usage which focuses more on burden of proof. With more stringent demands, the risk that rapists will go free increases, but on the other hand, rule of law for defendants increases.
[Yes you read that right again. Swedes parlayed away the little presumption of innocence they understood for the politically correct. Ed.]
Swedish prosecutors will be given new game rules after their holidays with informational meetings planned. District prosecutor Anna Håkansson, working at the prosecution authority in Malmö, believes this will be a big thing come this autumn.
'This is going to change a lot of things', says Håkansson. 'My take's that the district courts will use it not only in sex cases but in domestic cases as well with no witness statements or evidence. This clearly means more stringent requirements.'
[How do you convict someone presumed innocent with no evidence at all? You file a complaint in Sweden. Ed.]
Håkansson has led several high profile rape cases, such as the one against opera singer Tito Beltrán, and she believes that more preliminary investigations will be closed before they ever get to court.
'The supreme court just set the bar', she says.
Johan Ström at the Development Centre in Gothenburg is of the same opinion:
'We'll need to get better at our preliminary investigations, and document them well. It's going to be even more difficult if one files a complaint a month after the fact.'
Anna Kaldal, doctorate student in procedural law at Stockholm University with sex crimes as her speciality, has studied the supreme court verdicts with her colleague Katrin Lainpelto.
They say that the supreme court didn't actually raise the bar: one still has the principle of free evidentiary evaluation and the same requirements for evidence as in other criminal cases, but the verdicts will still have ramifications.
['Free evidentiary evaluation' - more on that below. Basically it means Swedes don't have a lot of the rules found in other countries where the law earns greater respect. Swedish courts can just 'wing it'. Ed.]
Anna sees a risk that they will create an exaggerated caution in prosecutors:
'The risk is they'll have a greater effect than intended. The statements of the supreme court affect the judges, who in turn affect the prosecutors, who in turn affect the police. In judicial terms, the situation hasn't changed radically.'
Appellate magistrate Göran Ewerlöf, who presided over the Stureplan trial, agrees.
'I believe the supreme court only established case law that's already been advocated. But psychologically there can be a change as our courts become more cautious.'
But he doesn't believe that this new case law would have acquitted the defendants in the Stureplan case, as there was supportive evidence in the form of SMS traffic and wounds.
Ulrika Rogland, the district prosecutor in Malmö who prosecuted the Alexandra man, says it's already 'very difficult' to get convictions.
'Already today our case law is so stringent, so we don't need to make things even worse. If the bar is further raised, I really don't know how we'll get any convictions at all!'
District prosecutor Rolf Hillegren at the Stockholm City prosecutor office appreciates the focus on rule of law.
'We must have high requirements when it comes to evidence in our criminal cases - even for sex crimes', he says.
'When one thinks of rape, one thinks mostly of really ugly violent crimes. But take a man and a woman who know each other and one night the woman says she's not in the mood but the man wants to do it anyway. Yes it's unfair, but it's not worth two years in prison! It's more like a misdemeanour!'
At the domestic violence unit in Malmö, criminal inspector Anna Gustafsson points to the difficulties in proving the majority of cases involving close relationships. All told they're only able to get a few hundred convictions per year in Sweden.
'Prosecutors have to be warriors in court.'
2. Frontlash & Backlash
The above SvD article caused a tidal wave of protests in the duckpond. Hearing things like courts having to presume innocence turned out to be too much for some of the ducks.
Perhaps the reader recognised the second last name in the article: Rolf Hillegren. That Hillegren should question the hysteria in the duckpond was too much. Several people complained to their ombudsman for justice, then notorious law professor Madeleine Leijonhufvud got involved, and six months before retirement, Rolf Hillegren agreed to not preside over further sex cases, so as to not further incite the hysterical and vociferous.
The reason anything so timid as the above supreme court verdict should be needed is that the same court (of course with different judges) passed down a very controversial verdict 18 years earlier that essentially tossed presumption of innocence out the window and onto the compost heap of discarded jurisprudence.
In a nutshell, the verdict said:
- No hard evidence is needed in sex crime cases.
- But only when it's a woman complaining about a man.
- The court must fully rely on the testimony of the woman.
- Although police are to always evaluate testimony to the benefit of the accused (presumption of innocence) they must do the opposite in the future.
- Should there be no evidence at all, and should the stories of the complainant and the accused be equally plausible, the police and the courts must side with the complainant (if the complainant is a woman).
- Courts must be wary of complainants who change their testimony especially in the initial stages of the investigation.
- Hearsay is admissible as evidence (see below).
3. da Costa
Catrine da Costa was a mother of two who worked as a prostitute in Stockholm. She officially went missing on 10 June 1984. Parts of her dismembered body were found on 18 July, then more on 7 August. Some of these were found near the Karolinska Institute, and two doctors at the institute came under suspicion. They were ultimately charged; the trial began in January 1988.
The prosecution used circumstantial evidence such as 'Karolinska's right between the two places we found body parts'. The rest of the evidence was provided by a little girl who recounted what she'd witnessed of the actions of the two doctors when she was two years of age.
The first trial was declared a mistrial because one of the lay judges spoke to the media about the strategy the court would use to convict once the trial was over.
The second court recognised that the cause of Catrine's death could not be ascertained, and therefore the defendants were acquitted; but the court did accept the testimony of the little girl, and ruled that the doctors had in fact dismembered the body, and thus revoked their medical licences.
The doctors have ever since tried to appeal, but the courts continue to do all they can to dodge the issue and save face. It was found later that the mother of the little girl had been involved in a divorce with one of the doctors and had coached the little girl on what to say to the police and in the court, but this didn't matter.
All the while hysterical feminist and greedy media organisations summoned up a lynch mob frenzy against the doctors.
4. Billy Butt
Billy Butt's full name is William Michael Butt. He was born in Kenya in 1945 of Indian parents. He and his family lived for some time in the UK before moving to Sweden.
Billy was successful in Sweden, founding Little Big Apple Records and composing several popular hits, as well as signing many successful recording artists. He even had his own TV show.
Billy's troubles began when some of the female aspirants who'd thought it OK to seduce him to get a coveted recording contract didn't get what they wanted. And in typical fashion ran to the police crying 'rape'.
And then one of Thomas Mattsson's predecessors at Expressen got the paper involved, openly soliciting other 'victims' to come forward to tell their stories to the police. The whole thing got so hysterical that even leading radical feminists protested against Billy's treatment.
And what did the Swedish appellate court say in their verdict? For it's the title of Billy's subsequent autobiography.
'A DISTINCTIVE APPEARANCE'
The Swedish appellate court namely ruled that the sexual encounters had to be rape because no Swedish girl could willingly have sex with a man with Billy Butt's 'distinctive' (Indian) appearance.
This despite the outright risible quality of the testimony brought against him.
- One girl testifies under oath that she interrupted her 'rape' to run to the toilet to remove her tampon, after which she returned to the bed so the rape could continue.
- Another girl testified she decided against protesting as she might have wakened the neighbours.
- Several other women admit they recommended Billy as a sex partner to their friends - precisely as Anna Ardin did with Kajsa Borgnäs 18 years later in the case of Julian Assange - after the encounters they were later encouraged to call 'rape'.
- Another girl tells the court how in the morning after the 'rape' she asks Billy when they're going to have her photo shoot. She gives him her phone number in Brighton England. When next in England, Billy rings her and takes her out to dinner at his London hotel, after which, the girl claims, she was raped again. But she spends the night with her rapist, eats breakfast at his hotel with him in the morning, and then motors with him from London back to Brighton where he is introduced to a friend of hers. The friend later tells the girl she fancies Billy; the girl tells her friend that Billy is great in the sack.
Billy served time; he's since tried eleven times to get his case reopened, and after the tenth attempt suffered a heart attack.
5. And More
There are myriad such cases in Sweden - yes in modern times. See this link for the astonishing case of 'Ulf'. Go to this site's search page to learn about the incredible story of 'Thomas Quick'. Or use the same page to see what's been happening with Julian Assange.
The Swedish judicial system is beyond repair. It's never been worked correctly in the first place.
As an example: hearsay.
Can hearsay be used in a court of law? The English version of Wikipedia:
'In courts of law, 'hearsay' means an assertion made by a person about some event, condition, or thing, when the person has no direct knowledge... The use of such evidence in court is generally not allowed. This prohibition is called the hearsay rule.'
But the Swedish version of Wikipedia:
'Hörsägen en juridisk term som ibland används i juridiska sammanhang, och är synonym med vardagsbegreppet skvaller. Uppgiftens sanningshalt eller ursprung kan därför inte alltid vid uttalandet kontrolleras eller fastslås. I motsats till en del andra rättssystem finns det inget hinder i svensk domstol att använda hörsägen, eftersom det i svensk domstol råder fri bevisprövning.'
'Hearsay is a judicial term sometimes used in a judicial context and is synonymous with gossip. The truthfulness of the information or its source can therefore not always be established. In contrast to other nations, there is no hindrance to using hearsay in Swedish courts because Swedish courts use free evidentiary evaluation.'
So what is free evidentiary evaluation? Free evidentiary evaluation (fri bevisprövning) is evaluating evidence without the constraints of rules - meaning Swedish courts can in effect 'wing it'.
And they do wing it. A survey of Swedish judges showed, for example, that many of them believe it's OK to convict without a shred of evidence - you just mete out a lighter sentence.
7. 'Swedish Justice'
The Quick scandal is a case in point. Sture Bergwall (using the name Thomas Quick back then to spare his family) was convicted of eight bestial murders without a shred of evidence. All sorts of tricks were pulled - and yet when Bergwall (Quick) recanted, all of the cases fell apart and all of the convictions were overturned, making it the latest (and the biggest) scandal ever.
The current minister for justice - the one with the high school diploma from Ohio - acts very concerned about the 'Quick' case and has promised to call a special investigation to find out 'what went wrong'. But the supposition is what's wrong - these types of things happen all the time in Sweden; you can't have good jurisprudence with a system like theirs.
- Trials have to be decided by juries where both the prosecution and the defence can vet potential jurors. The 'extras' according to the current system are mostly retired local politicians, and the attorneys can't influence who sits on cases.
- A bail system is needed. Badly. Marianne Ny (current Assange prosecutor who's held up that case for over three years now) once reopened a case where the accused had been released, had him tossed back in jail, then forgot about it all for a year and half. When she finally remembered him, he was released.
- Presumption of innocence is everything. No exceptions. It's the cornerstone of any state with civil rights and justice. Some cases can be difficult to prove, but you must never nudge the cornerstones of the legal system. Otherwise you'll end up in the mess Swedes are in. Then you might as well bring back the witch trials.
Swedish justice? It's an oxymoron.
Det stora oväsendet var en masshysteri som under åtta år av Karl XI:s regeringstid, mellan 1668 och 1676, förorsakade en stor mängd häxprocesser i Sverige. Det ledde till nästan 300 människors död innan det stoppades. Det var under denna tid som majoriteten av Sveriges häxprocesser hölls. Av de omkring fyrahundra personer som avrättades för trolldom i Sverige mellan 1492 och 1704, avrättades omkring trehundra mellan 1668 och 1676.
I'm so sick of it all. Will it never end? At any rate I want to say the other girl's just as much to blame.
- Anna Ardin
Apparently Swedish laws are unique. If you have a penis you're half a rapist before you even get through customs.
- Scott Adams
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
The prosecutor could achieve this broadening of the law during Assange's trial so he can be convicted of a crime that didn't exist at the time he allegedly committed it. She would need to. There is no precedent for this. The Swedes are making it up as they go along.
- James Catlin
Julian Assange will surely learn that considering what WikiLeaks has published, he's got a few enemies in the Pentagon, the CIA, and the White House. Sweden began an investigation into rape which was later dismissed. Assange was even denied residence in Sweden. One can only speculate to what extent the security agencies of the US were involved. And considering the obvious interest of the US to silence WikiLeaks, is it likely Assange will have an accident of the 'Boston brakes' kind in the coming years? Or will he be snared with compromising information of the 'honey trap' kind?
- 'Drozd' at Flashback 23 October 2010
The truth will out, the truth wins out. Let no journalist ever again speculate into what the protocols say. Six months of digging and the people at Flashback have the actual documents. The sleaze printed by rags such as the Daily Mail, Sweden's Aftonbladet and Expressen, and perhaps above all the toxic Nick Davies of the Guardian, can stand no more. Yet more: these documents are an indictment of the 'news organisations' who've printed deliberate inaccuracies all along or even worse: refused to print anything at all. Nick Davies' account of the protocols was maliciously skewed; both Aftonbladet and Expressen had copies early on and printed nothing. Bloggers had copies but arrogantly kept the information to their Smeagol selves.
- The Assange Police Protocol: Translator's Note