The extradition hearing in this case has been set for 7-8 February 2011.
The key arguments set out today in the PROVISIONAL SKELETON ARGUMENT ON BEHALF OF MR. ASSANGE presented to the media by defense counsel Mark Stephens are as follows:
(1) It is not accepted that the Swedish prosecutor is authorised to issue European Arrest Warrants (EAW). “The sole Issuing Judicial Authority [in Sweden] for the enforcement of a custodial sentence or other form of detention is the Swedish National Police Board”.
(2) European arrest warrants should only be issued for the purposes of prosecution, and it has been made very clear that Mr. Assange is wanted for further questioning.
Ms. Ny has repeatedly and publicly stated that she has sought an EAW in respect of Mr. Assange simply in order to facilitate his questioning and without having yet reached a decision as to whether or not to prosecute him.
Her statements can be considered as additional evidence because the European Arrest Warrant is itself equivocal:
The EAW is defective in respect of section 2 of the Act. It does not contain a clear indication that:
(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.
It leaves it entirely unclear as to whether the EAW is even a conviction EAW or an accusation EAW (assuming that it is one or the other, and not an interrogation EAW).
Nowhere in the EAW is Mr. Assange referred to as an “accused”.
Ms. Ny went from informal discussions about arranging an interview of Mr. 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.
The proper, proportionate and legal means of requesting a person’s questioning in the UK in these ircumstances is through Mutual Legal Assistance.
(3) There has been abuse of process: non-disclosure by the Swedish Prosecutor
The Swedish prosecutor confirmed to the Australian ambassador on December 16, 2010: "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)."
Mr. 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 – Ms. Wilen says that she was “half asleep” at the time of the sexual intercourse.
In passing it should be noted that if the Complainant’s own evidence that she was “half asleep” has been bolstered in the EAW into an allegation that she was fully asleep, in order to support the making of a rape allegation, then this would in itself constitute prosecutorial abuse.
Other text messages from and between the Complainants which the Swedish Prosecutor has refused to disclose but which Mr. Assange’s lawyer, Mr. Hurtig has seen (but was not allowed by the Prosecutor to take notes or copies of), speak of revenge and of the opportunity to make lots of money and of going to the Swedish national newspaper, Expressen
The horns of the Swedish Prosecutor’s dilemma are these: either (1) Mr. Assange’s extradition is sought for purposes of prosecution, and thus a decision has been taken as to his prosecution and he is then entitled under Swedish law to disclosure of the entire investigation file, including the SMS messages and blog evidence – and yet these crucial items of evidence have not been disclosed to him, representing a serious violation of Swedish criminal procedure law and dereliction of duty on the part of Ms. Ny, and thus an abuse of process, or (2) Mr. Assange’s extradition is not being sought for the purposes of prosecution, in which case it should not have been sought at all. Either way, it is an abuse of process for Ms. Ny to proceed in the way in which she is doing.
(4) There has been a further abuse of process: the conduct of the prosecution in Sweden
Contrary to Swedish law, an acting Prosecutor released (Mr. Assange's) 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 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, 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.
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 Borgstrom 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.
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.
(5) The offences alleged in the EAW are not of serious nature in the UK, as they must be to constitute extradition offences.
The issuing Judicial Authority has yet to state, in an Opening Note, which offences under English law it says would have been committed had the conduct alleged in box (e) occurred in the UK.
None of the conduct alleged against the requested person would constitute an offence in England and Wales.
The defense also reserves the right to argue the 2005 amendments to the sexual offences laws in Sweden which deny to men the protection of mens rea.
(6) Extraneous considerations (section 13 of the Act)
Mr Assange reserves the right to argue extraneous considerations. A person’s extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(a) the Part 1 warrant issued in respect of him (though purporting to be
issued on account of the extradition offence) is in fact issued for the
purpose of prosecuting or punishing him on account of his race,
religion, nationality, gender, sexual orientation or political opinions, or
(b) if extradited he might be prejudiced at his trial or punished, detained
or restricted in his personal liberty by reason of his race, religion,
nationality, gender, sexual orientation or political opinions.
The defense reserves the right to argue that the case may result in prosecuting or punishing him for his political opinions and/or that he will be prejudiced at trial, etc., by reason of those opinions, or by reason of his gender as a result of the 2005 amendments to the sexual offences laws in Sweden which deny to men the protection of mens rea.
(7) The extradition would be incompatible with Mr. Assange's human rights, in particular under Articles 3, 6, 8 and 10.
Mr. Assange reserves the right to argue that Article 3 of the European Commission on Human Rights may be breached by virtue of onward rendition to the USA.
Reliance is placed on two cases in which Sweden has been found to have violated the international prohibition on torture by virtue of rendition of persons to Egypt.
There is a real risk that, if extradited to Sweden, the US will seek his extradition and/or illegal rendition to the USA, where there will be a real risk of him being detained at Guantanamo Bay or elsewhere, in conditions which would breach Article 3 of the ECHR.
Indeed, if Mr. Assange were rendered to the USA, without assurances that the death penalty would not be carried out, there is a real risk that he could be made subject to the death penalty. It is well-known that prominent figures have implied, if not stated outright, that Mr. Assange should be executed.
It is submitted that, 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.