2011-02-06 Julian Assange extradition matrix

Context
Julian Assange was placed in international proceedings based on a European Arrest Warrant issued by Swedish prosecutors. European Union (EU) countries have a treaty that facilitates the process of a speedy extradition from one EU country to another, and beginning on Monday, February 7, a two-day hearing at Belmarsh Woolwich Crown Court in south London will determine whether Assange will be extradited from the UK to Sweden to face sex-crime accusations. He has been accused but has not been charged.

If Assange should lose, he will be extradited to Sweden unless he appeals the decision and wins. If he appeals, the appeal would be made to the Administrative Court, but it could be several months before it is heard. If that appeal is lost, an appeal to the Supreme Court is possible but not guaranteed. If a second appeal to the Supreme Court were to be made and lost, there is a third possibility, an appeal to the European Court of Human Rights in Strasbourg. Again, the possibility of a third appeal is not guaranteed.

Extradition from Sweden to US
Whatever happens in Sweden once Assange is extradited (on the hypothetical assumption that he will be), the US may indict him and have him "temporarily transferred," with Sweden's consent, so that he may face prosecution in the US. This can be done, legally, either before or after Assange undergoes trial in Sweden, according to the US/Sweden extradition treaty supplement (pdf) .

Once Assange is in the US, the US is under no obligation to return him to Sweden (if he is found guilty). According to the existing extradition treaty, if extradition to the US is granted, Sweden may choose to

(a) defer the surrender of the person sought until the conclusion of the proceedings against that person, or the full execution of any punishment that may be or may have been imposed; or

b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States.

That Assange may be returned to Sweden after the "conclusion of the proceedings" does not necessarily entail, legally, that he must be returned after he has been prosecuted, as Douglas McNabb of McNabb and Ferrari points out. The US and Sweden may jointly agree that he remain in the US until his full sentence has been served. Of course, if Assange is found guilty of conspiracy to commit espionage or conspiracy to receive stolen property, he may face life imprisonment or even death. Whether capital punishment is a real possibility in the event of US extradition will not be considered here.

Extradition from UK to US less likely?
The Guardian published an entry on their legal blog in December in which it was said that if Assange is extradited to Sweden under European arrest warrant, he "will be vulnerable to other extradition requests from countries including the US."

In response to claims like these, Sara Myrdal of the Swedish Prosecution Authority's international unit has said that it is impossible to extradite a person from Sweden to any other country if the person is under investigation or on trial in Sweden. Of course, if there are no charges brought against Assange or if the charges are dropped, extradition is not out of the question.

But would it be easier to extradite Assange to the US from Sweden or from the UK? A first point worth noting is that in order for Assange to be extradited from Sweden, the UK's consent is required. For this reason and others, it has been argued that Assange is more likely to be extradited to the US from the UK than from Sweden.

It has been suggested that it would be easier for the United States to extradite Assange from Sweden than from the United Kingdom.

This does not appear to be the case as the United States would have to show that there were reasonable grounds for the extradition from Sweden. This is arguably a higher test than the test which applies when an extradition is sought from the United Kingdom. (Source)

Whereas Sweden requires "reasonable grounds," the UK/US extradition treaty has been strongly criticized for creating "a lop-sided relationship under which the United States no longer has to provide ... evidence ... that an offence has been committed." (Source) A 2003 revision to the treaty includes the removal of "the requirement on the US to provide prima facie evidence when requesting the extradition of people from the UK."

If, then, Assange and his attorney believe that extradition to Sweden must be avoided, the decision to fight this extradition must be based on considerations other than those covered here. It might be based on a sincere fear of persecution in Sweden from the feminist camp, which was also discussed by former Swedish judge Sundberg-Weitman in an article in which she expressed concerns regarding the fairness with which Assange has been treated in Sweden. The legitimacy of these concerns as they pertain to Monday's extradition hearing is not in the scope of this article. The only certainty here is that Assange would rather face the UK's extradition process than return to Sweden.

Additional Sources

“Extradition Treaty Between the Government of the United Kingdom and Northern Ireland and the Government of the United States of America with Exchange of Notes,” Washington, D.C., March 31, 2003, pp. 3–4, at http://www.statewatch.org/news/2007/jun/uk-usa-extradition-treaty.pdf (August 23, 2010).

Council of the European Union, “Note from Presidency to Working Party on Cooperation in Criminal Matters,” EU Docu­ment No. 10975/07, July 9, 2007, at http://www.statewatch.org/news/2007/jul/eu-eaw-evaluation.pdf (August 23, 2010).

Richi Jennings, “Gary McKinnon’s Fight with U.S. Extradition,” Computerworld, May 29, 2010, at http://blogs.computerworld.com/16215/gary_mckinnons_fight_against_u_s_ex... (August 23, 2010).