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Assange Extradition: Marianne Ny's 'Allegation 2' Curveball
Can you base a European Arrest Warrant on what you know to be false evidence?
Arbed over at Craig Murray's poses a number of typically sharp questions about Marianne Ny's 'bait and switch' manoeuvre in her EAW application for the extradition of Julian Assange.
'Why did Marianne Ny keep Allegation 2 on the EAW despite already knowing that forensics results showed the condom 'evidence' had no sign of DNA on it?'
As a reminder, here's Allegation 2 as written on Ny's arrest warrant to extradite Assange from the UK. It concerns Anna Ardin's allegation that she believed a condom had broken during sex with Assange and that he had broken it deliberately.
2. Sexual molestation
On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
As we know, Marianne Ny was already aware by 25 October 2010, when she received the forensic results report back from the SKL lab, that Anna Ardin had, in fact, handed in a condom made to look torn and used but which had no DNA on it. Clearly, from Ny's point of view, this 'evidence' was useless to her purpose of prosecuting Assange for Allegation 2. Rather, the crime it pointed to was one of making false allegations. So why would Marianne Ny include on the EAW she drew up over a month later at the end of November 2010 an allegation she knew full well she would later have to withdraw?
The question in the title above was prompted by a curiously worded statement added to the Swedish Prosecution Authority's website ahead of Swedish broadcaster SVT's Agenda debate on the stalled investigation. Within a statement responding to the debate was a link to some extra clarification added to the reasons the SPA website gave back in 2012 why Assange could not be interviewed in London:
[Google Translate from the original:] The prosecutor's opportunity to ask questions about things in the investigation that are not directly expressed in the EAW is limited. Thus there was a significant risk that a hearing in London will not bring the investigation forward.
Well, of course that 'opportunity' is limited! Under the rule of specialty, it is a condition of European Arrest Warrants that, once extradited, you cannot prosecute someone for offences that are not detailed on the warrant itself.
The rule of specialty, which prohibits a person being dealt with in the requesting state for matters other than those referenced in the extradition request...
So, Marianne Ny knows she will have to drop Allegation 2, but nevertheless needs it to be written in the warrant for some reason. She also wishes to interrogate Assange about something not directly expressed on the EAW. This could - possibly - relate to some nefarious plan for Sweden to prosecute the WikiLeaks founder on computer hacking charges a la Anakata or Sweden's new 'foreign espionage' law, but that's not really Marianne Ny's area. She's a specialist. Her vocation in life is to head up the Swedish Domestic Crimes Development Unit in Gothenburg with a mission to expand Sweden's sex crimes legislation, so it's more likely the 'things not directly expressed in the EAW' Ms Ny is so keen to discuss with Assange - but only 'in person' and only once in Sweden - fall within that remit.
Let's take a little detour through another creative attempt to set new precedents in sex crimes legislation.
In the UK High Court judgment refusing Assange's appeal against Ny's warrant, the judges go to inordinate lengths [paragraphs 79 to 96, as discussed in this article] to look at Allegation 2 in the context of previous UK rape trials involving an element of 'rape by deception' to see whether Marianne Ny's Allegation 2 could meet the dual-criminality criteria for extradition (ie that the alleged offence would also constitute a crime in British law).
They decide that it does, but then go and spoil all the hard sleuthing through UK case law they've just done to justify Allegation 2 as an extraditable offence by mentioning in paragraph 94 that the forensic report suggests the rip in the condom which Anna Ardin presented as evidence is the result of wear and tear.
As a creative addition to sex crimes legislation, 'wear and tear' equalling 'rape by deception' is unlikely to make the grade. [Why did the UK High Court undercut its own argument by inserting this remark - the only reference to the Swedish investigation's underlying physical evidence in the entire judgment - in paragraph 94? It's deliberate, of course, because 'The conclusion of the expert was that there was nothing to indicate that a tool had been used, but that the damage to the condom was created by the wear and tear of the condom' is a lie. Take another look at that forensic results report. It clearly states that the tear edges on BOTH condoms (that 'both' is important, but I'll come back to that) match a 'control' rip in the back of Anna Ardin's condom that the laboratory technicians manually made themselves. No one has yet figured out what the purpose of the judges' obfuscation might be; however, we do know that UK High Court judges do not spend three months deliberating on a high profile, highly politicised case such as Assange's only to make an elementary 'mistake' like this.]
It is clear from the Swedish Prosecution Authority's most recent statements that the European Arrest Warrant issued by Marianne Ny is for investigative purposes after all, despite her misleading the UK court that she had already decided to prosecute Assange (under Swedish law, it is illegal for her to do so before the preliminary investigation is concluded). So, are there any matters in the Swedish police protocol still to be fully investigated for which Anna Ardin's Allegation 2 could act as a 'placeholder' - matters not 'directly expressed' on the EAW but nevertheless still 'there' in a more oblique way? Matters which could still go forward to prosecution, taking into account the rule on specialty, if Ardin's Allegation 2 was later withdrawn because the forensics results indicate her evidence is faked? Something which could be neatly slotted in as a substitute Allegation 2 (Allegation 2.1, as it were) and still meet both the specialty rule and dual criminality criteria?
Why yes - yes, there is.
Shortly after 09.30 AM Friday 20 August 2010 Anna Ardin told her friend Petra Ornstein, whom she phoned immediately after being contacted by Sofia Wilén for the first time, that 'there were a number of similarities between their stories' and that she'd just been told that 'Julian had seen to it [the other girl] had sex without a condom against her wishes'. Remember too how Ardin confirmed to Donald Boström after she had left the police station later that day that it was because 'we suddenly were two women who had a statement about the same man so it became a crime against the state'.
But are those 'similarities' Ardin describes between her own allegations and those of Sofia Wilén similar enough to enable Marianne Ny to substitute one for the other in respect of Allegation 2 on the EAW? Ny's rather peculiar wording of Allegation 2 as written on the face of the EAW warrant - 'Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity... consummated unprotected sexual intercourse with her without her knowledge' - does seem to echo that other statement about Sofia Wilén's claims ('Julian had seen to it they had sex without a condom against her wishes') to a remarkable degree.
Is it effectively the same 'statement about the same man' that the two women tell police when they visit Klara police station together on Friday 20 August 2010? Apparently, whatever they said was powerful enough to convince the duty prosecutor to issue an arrest warrant for Assange for 'double rape' even before either woman's formal statement had been taken or either of their complaints had been officially lodged in the police DurTvå computer system - despite one woman issuing multiple text messages while still at the police station that 'she only wanted him to take a [HIV] test' and 'did not want to put any charges on JA', and the other woman later insisting she only went along to support the younger woman's complaint.
Of course, Marianne Ny may not place too much credibility on Sofia Wilén's text messages - she has withheld 100 SMS text messages from the women's phone records from the file she submitted to the UK to support her extradition request, and refused to allow the Assange defence team to make copies of them - particularly if she feels there is evidence in the police protocol which contradicts what they say. Back to that forensics results report, which points towards a completely different interpretation of the case from the one we all think we know from its public presentation to date.
On the day he first heard from the forensics lab that they could find no DNA on Anna Ardin's condom evidence, lead police investigator Mats Gehlin (yes, the same policeman Marianne Ny insists is the only policeman qualified to interrogate Assange on the allegations he hasn't been asked about yet) wrote out a separate file note, datestamped 20/10/2010 15:08, and added it to the police investigation file. But the note seems less concerned about Anna Ardin's condom evidence than it does about the condom fragment from Wilén, which he'd sent to the lab on 25 August 2010 (ie after Wilén's case had been closed down by senior prosecutor Eva Finné and before it had been reopened by Marianne Ny on 1 September) with the specific instruction to test how the tears in BOTH Wilén's and Ardin's 'torn' condoms had been created; he hadn't even ticked the box requesting DNA analysis. The file note reads:
A conversation with SKL yielded the following.
The condom from the residence of complainant 2 [Ardin] had no traces of DNA.
Vaginal swabs from complainant 1 [Wilén] had DNA from complainant 1 [Wilén] and a man.
The bit of condom found in the residence of complainant 1 [Wilén] had DNA from complainant 1 [Wilén] and the same man found on the vaginal swabs.
Complainant 1 [Wilén] did not notice that a condom broke as it was dark in the room, and when the suspect put on the condom, she heard a noise as if he were pulling on a balloon. The bit of condom was found under the bed, under the part of the bed where the suspect was lying when he put on the condom.
The police protocol includes seizure protocol documentation, authorised by Eva Finné, for the collection of evidence items from Anna Ardin on 21 August 2010, including the condom she submitted. However, there is no corresponding documentation in the leaked protocol relating to a chain of custody for the deliberately torn fragment of condom from Sofia Wilén seen in the forensic lab photograph; it is simply appended to Ardin's case docket with the word 'produced'.
We therefore do not know whether police collected this condom fragment from Wilén's apartment (if so, why is there no police documentation for it?) or whether Wilén handed it to Stockholm's Söder Hospital rape clinic during her third visit to a hospital that week, on the Friday morning after her conversation with Anna Ardin (she'd been to two separate hospitals three days earlier, in the second of which she'd had a rape kit done taking 'DNA samples' and, almost certainly, received precautionary PEP post-HIV infection treatment within its 72-hour effectiveness window), or whether Sofia simply handed it to the first policewoman she spoke to at Klara police station prior to sitting down with a second policewoman, officer Irmeli Krans, to give her formal witness statement - in which, of course, she mentions nothing about hearing 'a noise as if he were pulling on a balloon' or finding a condom fragment under the bed. Her friends' witness statements give no indication she mentioned it to them either.
It is high time that a formal Freedom of Information request is put in for the release of the police seizure protocol relating to Sofia Wilén's condom fragment (if one exists, that is) or, if no such document exists, any and all other documentation pertaining to it.
The SKL forensic lab reference number for Wilén's condom fragment is: 201001231102, filed under designation: AB/7525-10/G001, case number: K246314, if anyone wishes to follow up on this - surely this is something any enterprising Swedish journalist or citizen alarmed at the damage being done to the reputation of Sweden's judicial system ought to pursue?
It may hold the key to unlocking the mystery of Marianne Ny's 'extraordinary' behaviour and disastrous mishandling of this investigation.
Industry Watch: 7th December: A Scrapbook
Industry Watch: 'Something has to explain...'
Industry Watch: Marianne Ny Has Nothing To Say
Red Hat Diaries: 'Try Me for Rape Too, Marianne Ny!'